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THE AMERICAN COMMONWEALTH 



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THE 

AMERICAN COMMONWEALTH 



BY 



JAMES BRYCE 

AUTHOR OF "THE HOLY ROMAN EMPIRE 
M.P. FOR ABERDEEN 



IN TWO VOLUMES 

VOL. I 
The National Government — The State Governments 



THIRD EDITION 

COMPLETELY REVISED THROUGHOUT 
(46th Thousand) 



MACMILLAN AND CO. 



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AND LONDON 

1893 

All rights reserved 



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COPYKIGHT, 1893, 

By MACMILLAN AND CO. 



Norfooot) Iprrss: 

J. S. Cushing & Co. — Berwick & Smith. 

Boston, Mass., U.S.A. 






2To mg jjttentis antj Colleagues 

ALBEKT VENN DICEY 
THOMAS EESKINE HOLLAND 



PREFACE 

As the introductory chapter of this work contains such 
explanations as seem needed of its scope and plan, the 
Author has little to do in this place except express his 
thanks to the numerous friends who have helped him with 
facts, opinions, and criticisms, or by the gift of books or 
pamphlets. Among these he is especially indebted to 
the Hon. Thomas M. Cooley, now Chairman of the Inter- 
State Commerce Commission in Washington; Mr. James B. 
Thayer of the Harvard Law School, Cambridge, Mass. ; Hon. 
Seth Low, formerly Mayor of Brooklyn ; Mr. E. L. Godkin 
of New York ; Mr. Theodore Roosevelt of New York ; Mr. 
G. Bradford of Cambridge, Mass. ; and Mr. Theodore Bacon 
of Rochester, N.Y. ; by one or other of whom the greater 
part of the proofs of these volumes have been read. He 
has also received valuable aid from Mr. Justice Holmes 
of the Supreme Court of Massachusetts; Mr. Theodore 
D wight, late Librarian of the State Department at Wash- 
ington ; Mr. H. Villard of New York ; Dr. Albert Shaw 
of Minneapolis ; Mr. Jesse Macy of Grinnell, la. ; Mr. 
Simeon Baldwin and Dr. George P. Fisher of New Haven, 
Conn.; Mr. Henry C. Lea of Philadelphia; Col. T. W. 
Higginson of Cambridge, Mass. ; Mr. Bernard Moses of 
Berkeley, Cal. ; Mr. A. B. Houghton of Corning, N.Y. ; 
Mr. John Hay of Washington ; Mr. Henry Hitchcock of 



PREFACE 



St. Louis, Mo. ; President James B. Angell of Ann Arbor. 
Mich.; Hon. Andrew D. White of Syracuse, N.Y.; Mr. 
Frank J. Goodnow and Mr. Edward P. Clark of New 
York; Dr. Atherton of the State College, Pennsylvania; 
and the authorities of the U.S. Bureau of Education. No 
one of these gentlemen is, however, responsible for any of 
the facts stated or views expressed in the book. 

The Author is further indebted to Mr. Low for a chapter 
written by him, which contains matter of much interest 
relating to municipal government and politics. 

He gladly takes this opportunity of thanking for their 
aid and counsel four English friends : Mr. Henry Sidg- 
wick, who has read most of the proofs with great care and 
made valuable suggestions upon them ; the Rev. Stopford 
A. Brooke, whose literary criticisms have been veiy help- 
ful ; Mr. Albert V. Dicey, and Mr. W. Robertson Smith. 

He is aware that, notwithstanding the assistance rendered 
by friends in America, he must have fallen into not a few- 
errors, and without asking to be excused for these, lie 
desires to plead in extenuation that the book has been 
written under the constant pressure of public duties as 
well as of other private work, and that the difficulty of 
obtaining in Europe correct information regarding the 
constitutions and laws of American States and the rules 
of party organizations is very great. 

When the book was begun, it was intended to contain a 
study of the more salient social and intellectual phenomena 
of contemporary America, together with descriptions oi 
the scenery and aspects of nature and human nature in 
the West, all of whose States and Territories the Author 
has visited. But as the work advanced, lie found that to 



PEEFACE IX 



carry out this plan it would be necessary either unduly to 
curtail the account of the government and politics of the 
United States, or else to extend the book to a still greater 
length than that which, much to his regret, it has now 
reached. He therefore reluctantly abandoned the hope of 
describing in these volumes the scenery and life of the 
West. As regards the non-political topics which were to 
have been dealt with, he has . selected for discussion in the 
concluding chapters those of them which either were 
comparatively unfamiliar to European readers, or seemed 
specially calculated to throw light on the political life of 
the country, and to complete the picture which he has 
sought to draw of the American Commonwealth as a whole. 

October 22, 1888. 



NOTE TO THE THIRD EDITION 

This edition has been carefully revised throughout, 
difficult and controverted points have been reconsidered, 
many statements have been qualified or added to, the con- 
stitutional changes in the States since 1889 have been 
noted, and the figures of population have been corrected 
by the census returns of 1890. 

The Author gladly takes this opportunity of thanking 
those in America, many of them previously unknown to 
him, who have sent him letters calling attention to state- 
ments which they consider doubtful or erroneous. He has 
also to acknowledge help received not only from some of 
those mentioned in the former preface, but from many 
others also, especially from President Eliot of Harvard 



PREFACE 



University, Senator H. C. Lodge, Representatives W. L. 
Wilson and W. C. Breckinridge, Professors Anson D. 
Morse, J. B. McMaster, and A. B. Hart, Messrs. Alfred 
Russell, Charles F. Adams, Amasa M. Eaton, T. N. Brown, 
J. B. Bishop, F. T. Stimson, L. N. Dembitz, E. T. McDer- 
mott, V. M. Francis, Dr. Washington Gladden, and the 
Secretaries of State of the six new States, as well as from 
Mr. J. G. Bourinot of Ottawa, Canada. 

Nor can he let pass this opportunity of expressing his 
warm and grateful sense of the kindness with which his 
efforts to set forth the political and social phenomena of 
the United States have been received in that country. 



February 26, 1893. 



CONTENTS 



VOL. I 



List of Presidents 

Area, Population, and Date of Admission of the States . 
Dates of some Remarkable Events in the History of the 
North American Colonies and United States 



page 

xiv 
xv 



Introductory 



PART I — The National Government 



ii. The Nation and the States . 

in. The Origin of the Constitution 

iv. Nature of the Federal Government 

v. The President ..... 

vi. Presidential Powers and Duties . 
vii. Observations on the Presidency . 
viii. "Why Great Men are not chosen Presidents 

ix. The Cabinet 

x. The Senate 

xi. The Senate as an Executive and Judicial 
xii. The Senate : Its Working and Influence 
xiii. The House of Representatives 
xiv. The House at Work 
xv. The Committees of Congress 
xvi. Congressional Legislation 
xvii. Congressional Finance . 
xvni. The Relations of the Two Houses 



Body 



15 

19 

32 

38 

53 

70 

78 

86 

97 
106 
111 
124 
142 
154. 
165 
174 
183 



Xll 



CONTENTS 



CHAP. 

xix. General Observations on Congress . 
xx. The Relations of Congress to the President 
xxi. The Legislature and the Executive 

xxii. The Federal Courts 

xxiii. The Courts and the Constitution 
xxiv. The Working of the Courts 
xxv. Comparison of the American and European Systems, 
xxvi. General Observations on the Frame of National 

Government 

xxvii. The Federal System 

xxviii. Working Relations of the National and the State 
Governments . 
xxix. Criticism of the Federal System 
xxx. Merits of the Federal System 
xxxi. Growth and Development of the Constitution 
xxxii. The Amendment of the Constitution 
xxxiii. The Interpretation of the Constitution . 
xxxiv. The Development of the Constitution by Usage 
xxxv. The Results of Constitutional Development 



PART II — The State Governments 



xxxvi. Nature of the American State 

xxxvii. State Constitutions 

xxxviii. The Development of State Constitutions 
xxxix. Direct Legislation by the People . 

xl. State Legislatures 

xli. The State Executive 

xlii. The State Judiciary 

xliii. State Finance 

xliv. The Working of State Governments^ 
xlv. Remedies for the Fa i lis of State Governments 

xlvi. State Politics 

xlvii. The Territories 

xlviii. Local Government 

xlix. Observations on Rural Local Government 

l. The Government of Cities 

li. The Working of City Governments . 
lie An A.merk w View oi Municipal Government in 
i hi: LTni i in States 



CONTENTS 



APPENDIX 

On Constitutional Conventions . . ... * 

What the Federal Constitution owes to the State Con 

stitutions 

Extracts from the Rules of the Senate 

Private Bills 

The Lobby .......... 

The Federal System of the English Universities 
Constitution of the Confederate States, 1861-65 
The Federal Constitution of Canada .... 

The Dartmouth College Case 

Specimens of Provisions in State Constitutions limiting 

Taxing and Borrowing Powers .... 

Articles of Confederation, 1781-88 .... 

Constitution of the United States ..... 
Extracts from the Constitution of the State of Cali 

FORNIA .......... 



PAGE 

667 

670 
673 

675 
677 
682 
683 

084 
086 

687 
690 
697 

711 



LIST OF PRESIDENTS 



1789-1793 


George Washington. 


1793-1797 


Re-elected. 


1797-1801 


John Adams. 


1801-1805 


Thomas Jefferson. 


1805-1809 


Re-elected. 


1809-1813 


James Madison. 


1813-1817 


Re-elected. 


1817-1821 


James Monroe. 


1821-1825 


Re-elected. 


1825-1829 


John Quincy Adams. 


1829-1833 


Andrew Jackson. 


1833-1837 


Re-elected. 


1837-1841 


Martin Van Buren. 


1841-1845 


William Henry Harrison (died 1841) 




John Tyler. 


1845-1849 


James Knox Polk. 


1849-1853 


Zachary Taylor (died 1850). 




Millard Fillmore. 


1853-1857 


Franklin Pierce. 


1857-1861 


James Buchanan. 


1861-1865 


Abraham Lincoln. 


1865-1869 


Re-elected (died 1865). 




Andrew Johnson. 


1869-1873 


Ulysses S. Grant. 


1873-1877 


Re-elected. 


1877-1881 


Rutherford Birciiard Hayes. 


1881-1885 


James Abram Garfield (died 1881). 




Chester A. Arthur. 


1885-18S9 


(Stephen) Grovkk Cleveland. 


1889-1893 


Benjamin Harrison. 


1893- 


Grover Cleveland. 



CHAPTER I 

INTRODUCTORY 

" What do you think of our institutions ? " is the question 
addressed to the European traveller in the United States by 
every chance acquaintance. The traveller finds the question 
natural, for if he be an observant man his own mind is full of 
these institutions. But he asks himself why it should be in 
America only that he is so interrogated. In England one does 
not inquire from foreigners, nor even from Americans, their 
views on the English laws and government; nor does the 
Englishman on the Continent find Frenchmen or Germans or 
Italians anxious to have his judgment on their politics. Pres- 
ently the reason of the difference appears. The institutions 
of the United States are deemed by inhabitants and admitted 
by strangers to be a matter of more general interest than those 
of the not less famous nations of the Old World. They are, or 
are supposed to be, institutions of a new type. They form, or 
are supposed to form, a symmetrical whole, capable of being 
studied and judged all together more profitably than the less 
perfectly harmonized institutions of older countries. They 
represent an experiment in the rule of the multitude, tried on 
a scale unprecedentedly vast, and the results of which every one 
is concerned to watch. And yet they are something more than 
an experiment, for they are believed to disclose and display 
the type of institutions towards which, as by a law of fate, 
the rest of civilized mankind are forced to move, some with 
swifter, others with slower, but all with unresting feet. 

When our traveller returns home he is again interrogated 
y the more intelligently curious of his friends. But what 
ow strikes him is the inaptness of their questions. Thought- 
ful Europeans have begun to realize, whether with satisfaction 
or regret, the enormous and daily-increasing influence of the 

VOL. IB 1 



THE UNITED STATES 



United States, and the splendour of the part reserved for them 
in the development of civilization. But such men, unless they 
have themselves crossed the Atlantic, have seldom either exact 
or correct ideas regarding the phenomena of the New World. 
The social and political experiments of America constantly 
cited in Europe both as patterns and as warnings are hardly 
ever cited with due knowledge of the facts, much less with 
comprehension of what they teach; and where premises are 
misunderstood inferences must be unsound. 

It is such a feeling as this, a sense of the immense curiosity 
of Europe regarding the social and political life of America, 
and of the incomparable significance of American experience, 
that has led and will lead so many travellers to record their 
impressions of the Land of the Future. Yet the very abun- 
dance of descriptions in existence seems to require the author 
of another to justify himself for adding it to the list. 

I might plead that America changes so fast that every few 
years a new crop of books is needed to describe the new face 
which things have put on, the new problems that have appeared, 
the new ideas germinating among her people, the new and 
unexpected developments for evil as well as for good of which 
her established institutions have been found capable. I might 
observe that a new generation grows up every few years in 
Europe, which does not read the older books, because they are 
old, but may desire to read a new one. And if a further reason 
is asked for, let it be found in this, that during the last fifty 
years no author has proposed to himself the aim of portraying 
the whole political system of the country in its practice as well 
as its theory, of explaining not only the National Government 
but the State Governments, not only the Constitution but the 
party system, not only the party system but the ideas, temper, 
habits of the sovereign people. Much that is valuable has 
been written on particular parts or aspects of the subject, but 
no one seems to have tried to deal with it as a whole ; not to 
add that some of the ablest writers have been cither advocates, 
often professed advocates, or detractors of democracy. 

To present such a general view of the United States both as 
a Government and as a Nation is the aim of the present book. 
But in seeking to be comprehensive it does not attempt to be 
exhaustive. The effort to cover the whole ground with equal 



INTRODUCTORY 



minuteness, which a penetrating critic — the late Karl Hille- 
brand — remarked upon as a characteristic fault of English 
writers, is to be avoided not merely because it wearies a reader, 
but because it leads the writer to descant as fully upon mat- 
ters he knows imperfectly as upon those which his own tastes 
and knowledge qualify him to deal with. I shall endeavour 
to omit nothing which seems needed to make the political life 
and the national character and tendencies of the Americans 
intelligible to Europeans, and with this view shall touch upon 
some topics only distantly connected with government or poli- 
tics. But there are also many topics, perhaps no more remote 
from the main subject, which I shall pass lightly over, either 
because they have been sufficiently handled by previous writ- 
ers, or because I have no such minute acquaintance with them 
as would make my observations profitable. Eor instance, the 
common-school system of the United States has been so fre- 
quently and fully described in many easily accessible books 
that an account of it will not be expected from me. But 
American universities have been generally neglected by Euro- 
pean observers, and may therefore properly claim some pages. 
The statistics of manufactures, agriculture, and commerce, the 
systems of railway finance and railway management, are full 
of interest, but they would need so much space to be properly 
set forth and commented on that it would be impossible to 
bring them within the present volumes, even had I the special 
skill and knowledge needed to distil from rows of figures the 
refined spirit of instruction. Moreover, although an account of 
these facts might be made to illustrate the features of Amer- 
ican civilization, it is not necessary to a comprehension of 
American character. Observations on the state of literature 
and religion are necessary, and I have therefore endeavoured 
to convey some idea of the literary tastes and the religious 
habits of the people, and of the part which these play in form- 
ing and colouring the whole life of the country. 

The book which it might seem natural for me to take as a 
model is the Democracy in America of Alexis de Tocqueville. 
It would indeed, apart from the danger of provoking a com- 
parison with such an admirable master of style, have been an 
interesting and useful task to tread in his steps, and seek to 
do for the United States of 1888, with their sixty millions of 



THE UNITED STATES 



people, what he did for the fifteen millions of 1832. But what 
I have actually tried to accomplish is something different, for I 
have conceived the subject upon quite other lines. To Toeque- 
ville America was primarily a democracy, the ideal democracy, 
fraught with lessons for Europe, and above all for his own 
France. What he has given us is not so much a description of 
the country and people as a treatise, full of fine observation and 
elevated thinking, upon democracy, a treatise whose conclusions 
are illustrated from America, but are founded, not so much on 
an analysis of American phenomena, as on general and some- 
what speculative views of democracy which the circumstances 
of France had suggested. Democratic government seems to 
me, with all deference to his high authority, a cause not so 
potent in the moral and social sphere as he deemed it ; and 
my object has been less to discuss its merits than to paint the 
institutions and people of America as they are, tracing what is 
peculiar in them not merely to the sovereignty of the masses, 
but also to the history and traditions of the race, to its funda- 
mental ideas, to its material environment. I have striven to 
avoid the temptations of the deductive method, and to present 
simply the facts of the case, arranging and connecting them as 
best I can, but letting them speak for themselves rather than 
pressing upon the reader my own conclusions. The longer any 
one studies a vast subject, the more cautious in inference does 
he become. When I first visited America eighteen years ago, 
I brought home a swarm of bold generalizations. Half of them 
were thrown overboard after a second visit in 1881. Of the 
half that remained, some were dropped into the Atlantic when 
1 returned across it after a third visit in 1883-84 : and although 
the two later journeys gave birth to some new views, these 
views are fewer and more discreetly cautious than their de- 
parted sisters of 1870. I can honestly say that I shall be bet- 
ter pleased if readers of a philosophic turn find in this book 
matter on which they feel they can safely build theories for 
themselves, than if they take from it theories ready made. 

To have dealt with the subject historically would have been 
profitable as well as pleasant, for the nature of institutions is 
best understood when their growth has been traced and illus- 
trations adduced of their actual working. If I have made only 
a sparing use of this method, it has been from no want of love 



INTRODUCTORY 



for it, but because a historical treatment would have seldom 
been compatible with my chief aim, that of presenting, within 
reasonable compass, a full and clear view of the facts of to- 
day. * American history, of which Europeans know scarcely 
anything, may be wanting in colour and romance when com- 
pared with the annals of the great states of the Old World ; 
but it is eminently rich in political instruction. ' I hope that 
my American readers, who, if I am not mistaken, know the 
history of their country better than the English- know that of 
England, will not suppose that I have ignored this instruction, 
but will allow for the omissions rendered necessary by the 
magnitude of the subject which I am trying to compress into 
two volumes. Similar reasons compel me to deal succinctly 
with the legal aspects of the Constitution ; but the lay reader 
may possibly deem this brevity a merit. 

Even when limited by the exclusion of history and law, the 
subject remains so vast and complex as to make needful some 
explanation of the conception I have formed of it, and of the 
plan upon which the book has been constructed. 
V There are three main things that one wishes to know about 
a national commonwealth, viz. its framework and constitutional 
machinery, the methods by which it is worked, the forces which 
move it and direct its course. It is natural to begin with the 
first of these. Accordingly, I begin with the government ; and 
as the powers of government are two-fold, being vested partly 
in the National or Federal authorities and partly in the States, 
I begin with the National government, whose structure presents 
less difficulty to European minds, because it resembles the 
national government in each of their own countries. Part I. 
therefore contains an account of the several Federal authorities, 
the President, Congress, the Courts of Law. It describes the 
relations of the National or central power to the several States. 
It discusses the nature of the Constitution as a fundamental 
supreme law, and shows how this stable and rigid instrument 
has been in a few points expressly, in many others tacitly and 
half-unconsciously modified. 

Part II. deals similarly with the State Governments, exam- 
ining the constitutions that have established them, the authori- 
ties which administer them, the practical working of their 
legislative bodies. And as local government is a matter of 



THE UNITED STATES 



State regulation, there is also given some account of the sys- 
tems of rural and city government which have been created in 
the various States, and which have, rural government for its 
merits and city government for its faults, become the theme 
of copious discussion among students of American institu- 
tions. 

(Part III.) The whole machinery, both of national and of 
State governments, is worked by the political parties. Parties 
have been organized far more elaborately in the United States 
than anywhere else in the world, and have passed more com- 
pletely under the control of a professional class. The party 
organizations in fact form a second body of political machinery, 
existing side by side with that of the legally constituted govern- 
ment, and scarcely less complicated. Politics, considered not 
as the science of government, but as the art of winning elections 
and securing office, has reached in the United States a develop- 
ment surpassing in elaborateness that of Britain or Fiance as 
much as the methods of those countries surpass the methods of 
Servia or Eoumania. Part III. contains a sketch of this party 
system, and of the men who '-run" it, topics which deserve and 
would repay a fuller examination than they have yet received 
even in America, or than my limits permit me to bestow. 

(Part IV.) The parties, however, are not the ultimate force 
in the conduct of affairs. Behind and above them stands the 
people. Public opinion, that is the mind and conscience of the 
whole nation, is the opinion of persons who art 1 included in 
the parties, for the parties taken together are the nation ; and 
the parties, each claiming to be its true exponent, seek to use it 
for their purposes. Yet it stands above the parties, being cooler 
and larger minded than they are ; it awes party leaders and 
holds in check party organizations. No one openly ventures 
to resist it. It determines the direction and the character of 
national policy. It is the product of a greater number of 
minds than in any other country, and it is more indisputably 
sovereign. It is the central point of the whole American 
polity. To describe it, that is, to sketch the leading political 
ideas, habits, and tendencies of the American people, and show- 
how they express themselves in action, is the most difficult and 
also the most vital part of my task ; and to this task the twelve 
chapters of Part I V. are devoted. 



INTRODUCTORY 



(Part V.) As the descriptions given and propositions ad- 
vanced in treating of the party system and of public opinion 
are necessarily general, they seem to need illustration by 
instances drawn from recent American history. I collect some 
snch instances in Part V., and place there a discussion of several 
political questions which lie outside party politics, together 
with some chapters in which the attempt is made to estimate 
the strength and weakness of democratic government as it 
exists in the United States, and to compare the phenomena 
which it actually shows with those which European specula- 
tion has attributed to democracy in general. 

(Part VI.) At this point the properly political sections of 
the book end. But there are certain non-political institutions, 
certain aspects of society, certain intellectual or spiritual forces, 
which count for so much in the total life of the country, in the 
total impression which it makes and the hopes for the future 
which it raises, that they cannot be left unnoticed. -These, or 
rather such of them as are of most general interest, and have 
been least understood in Europe, will be found briefly treated 
in Part VI. In the view which I take of them, they are all 
germane, though not all equally germane, to the main subject of 
the book, which is the character, temper, and tendencies of the 
American nation as they are expressed, primarily in political 
and social institutions, secondarily in literature and manners. 

This plan involves some repetition. But an author who finds 
himself obliged to choose between repetition and obscurity 
ought not to doubt as to his choice. Whenever it has been 
necessary to trace a phenomenon to its source, or to explain the 
connection between several phenomena, I have not hesitated, 
knowing that one must not expect a reader to carry in his mind 
all that has been told already, to re-state a material fact, or re- 
enforce a view which gives to the facts what I conceive to be 
their true significance. 

It may be thought that a subject of this great compass ought, 
if undertaken at all, to be undertaken by a native American. 
No native American has, however, undertaken it. Such a 
writer would doubtless have many advantages over a stranger. 
Yet there are two advantages which a stranger, or at least a 
stranger who is also an Englishman, with some practical know- 
ledge of English politics and English law, may hope to secure. 



THE UNITED STATES 



He is struck by certain things which a native does not think 
of explaining, because they are too obvious ; and whose influ- 
ence on politics or society, one to whom they seem part of the 
order of nature forgets to estimate. And the stranger finds it 
easier to maintain a position of detachment, detachment not 
only from party prejudice, but from those prepossessions in 
favour of persons, groups, constitutional dogmas, national pre- 
tensions, which a citizen can scarcely escape except by falling 
into that attitude of impartial cynicism which sours and per- 
verts the historical mind as much as prejudice itself/ He who 
regards a wide landscape from a distant height sees its details 
imperfectly, and must unfold his map in order to make out 
where each village lies, and how the roads run from point to 
point. But he catches the true perspective of things better 
than if he were standing among them. The great features of 
the landscape, the valleys, slopes, and mountains, appear in 
their relative proportion : he can estimate the height of the 
peaks and the breadth of the plains. So one who writes of a 
country not his own may turn his want of familiarity with 
details to good account if he fixes his mind strenuously on the 
main characteristics of the people and their institutions, while 
not forgetting to fill up gaps in his knowledge by frequent 
reference to native authorities. My own plan has been first to 
write down what struck me as the salient and dominant facts, 
and then to test, by consulting American friends and by a fur- 
ther study of American books, the views which I had reached. 
To be non-partisan, as I trust to have been, in describing 
the politics of the United States, is not difficult for a European, 
especially if he has the good fortune to have intimate friends in 
both the great American parties. To feel and show no bias in 
those graver and more sharply accentuated issues which divide 
men in Europe, the issues between absolutism, oligarchy, and 
democracy; between strongly unified governments and the 
policy of decentralization, this is a harder task, yet a not less 
imperative duty. This much I can say, that no tart has been 
either stated or suppressed, and no opinion put forward, with 
the purpose of serving any English party-doctrine or party-pol- 
icy, or in any way furnishing arguments for use in any English 
controversy. The admirers and the censors oi' popular govern- 
ment are equally likely to find in the present treatise materials 



INTRODUCTORY 



suited to their wishes ; and in many cases, if I may judge from 
what has befallen some of my predecessors, they will draw from 
these materials conclusions never intended by the author. 

Few things are more difficult than to use aright arguments 
founded on the political experience of other countries. As the 
chief practical use of history is to deliver us from plausible 
historical analogies, so a comprehension of the institutions of 
other nations enables us to expose sometimes the ill-grounded 
hopes, sometimes the empty fears, which loose reports about those 
nations generate. Direct inferences from the success or failure 
of a particular constitutional arrangement or political usage in 
another country are rarely sound, because the conditions differ 
in so many respects that there can be no certainty that what 
flourishes or languishes under other skies and in another soil 
will likewise flourish or languish in our own. Many an Ameri- 
can institution would bear different fruit if transplanted to 
England, as there is hardly an English institution which has 
not undergone, like the plants and animals of the Old World, 
some change in America. The examination and appraisement 
of the institutions of the United States is no doubt full of 
instruction for Europe, full of encouragement, full of warning ; 
but its chief value lies in what may be called the laws of politi- 
cal biology which it reveals, in the new illustrations and en- 
forcements it supplies of general truths in social and political 
science, truths some of which were perceived long ago by Plato 
and Aristotle, but might have been forgotten had not America 
poured a stream of new light upon them. Now and then we 
may directly claim transatlantic experience as accrediting or 
discrediting some specific constitutional device or the policy of 
some enactment. But even in these cases he who desires to 
rely on the results shown in America must first satisfy himself 
that there is such a parity of conditions and surroundings in 
respect to the particular matter as justifies him in reasoning 
directly from ascertained results there to probable results in 
his own country. 

It is possible that these pages, or at least those of them 
which describe the party system, may produce on European 
readers an impression which I neither intend nor desire. They 
may set before him a picture with fewer lights and deeper 
shadows than I have wished it to contain. Twenty years ago 



10 THE UNITED STATES chap. 

I travelled, in Iceland with two friends. We crossed the great 
Desert by a seldom trodden track, encountering, during two 
months of late autumn, rains, tempests, snow-storms, and other 
hardships too numerous to recount. But the scenery was so 
grand and solemn, the life so novel, the character of the people 
so attractive, the historic and poetic traditions so inspiring, that 
we returned full of delight with the marvellous isle. When 
we expressed this enchantment to our English friends, we were 
questioned about the conditions of travel, and forced to admit 
that we had been frozen and starved, that we had sought sleep 
in swamps or on rocks, that the Icelanders lived in huts scat- 
tered through a wilderness, with none of the luxuries and few 
even of the comforts of life. Our friends passed over the 
record of impressions to dwell on the record of physical experi- 
ences, and conceived a notion of the island totally different 
from that which we had meant to convey. We perceived too 
late how much easier it is to state tangible facts than to com- 
municate impressions. If I may attempt to apply the analogy 
to the United States and their people, I will say that they 
make on the visitor an impression so strong, so deep, so fasci- 
nating, so inwoven with a hundred threads of imagination and 
emotion, that he cannot hope to reproduce it in words, and to 
pass it on undiluted to other minds. With the broad facts of 
politics it is otherwise. These a traveller can easily set forth, 
and is bound in honesty to set forth, knowing that in doing so 
he must state much that is sordid, much that will provoke 
unfavourable comment. The European reader grasps these 
tangible facts, and, judging them as though they existed under 
European conditions, draws from them conclusions disparaging 
to the country and the people. What he probably fails to do. 
because this is what the writer is most likely to fail in enabling 
him to do, is to realize the existence in the American people of 
a reserve of force and patriotism more than sufficient to sweep 
away all the evils which are now tolerated, and to make the 
politics of the country worthy of its material grandeur and of 
the private virtues of its inhabitants. America excito 
admiration which must be felt upon the spot to he understood. 
The hopefulness of her people communicates itself to one who 
moves among them, and makes him perceive that the graver 
faults of politics may be far less dangerous there than they 



INTRODUCTORY 11 



would be in Europe. A hundred times in writing this book 
have I been disheartened by the facts I was stating : a hundred 
times has the recollection of the abounding strength and vital- 
ity of the nation chased away these tremors. 

There are other risks to which such a book as this is neces- 
sarily exposed. There is the risk of supposing that to be gen- 
erally true which the writer has himself seen or been told, and 
the risk of assuming that what is now generally true is likely 
to continue so. Against the former of these dangers he who 
is forewarned is forearmed : as to the latter I can but say that 
whenever I have sought to trace a phenomenon to its causes I 
have also sought to inquire whether these causes are likely to 
be permanent, a question which it is well to ask even when no 
answer can be given. I have attributed less to the influence 
of democracy than most of my predecessors have done, believ- 
ing that explanations drawn from a form of government, being 
easy and obvious, ought to be cautiously employed. Some one 
has said that the end of philosophy is to diminish the number 
of causes, as the aim of chemistry is to reduce that of the ele- 
mental substances. But it is an end not to be hastily pursued. 
A close analysis of social and political phenomena often shows 
that causes are more complex than had at first appeared, and 
that that which had been deemed the main cause is active only 
because some inconspicuous, but not less important, condition 
is also present. The inquisition of the forces which move 
society is a high matter ; and even where certainty is unattain- 
able it is some service to science to have determined the facts 
and correctly stated the problems, as Aristotle remarked long 
ago that the first step in investigation is to ask the right 
questions. 

I have, however, dwelt long enough upon the perils of the 
voyage : it is now time to put to sea. Let us begin with a sur- 
vey of the national government, examining its nature and 
describing the authorities which compose it. 



PART I 
THE NATIONAL GOVERNMENT 



CHAPTER II 

THE NATION AND THE STATES 

A few years ago the American Protestant Episcopal Church 
was occupied at its triennial Convention in revising its liturgy. 
It was thought desirable to introduce among the short sentence 
prayers a prayer for the whole people ; and an eminent New 
England divine proposed the words " Lord, bless our nation." 
Accepted one afternoon on the spur of the moment, the sen- 
tence was brought up next day for reconsideration, when so 
many objections were raised by the laity to the word "nation," 
as importing too definite a recognition of national unity, that 
it was dropped, and instead there were adopted the words " 
Lord, bless these United States." 

To Europeans who are struck by the patriotism and demon- 
strative national pride of their transatlantic visitors, this fear 
of admitting that the American people constitute a nation 
seems extraordinary. But it is only the expression on its sen- 
timental side of the most striking and pervading characteristic 
of the political system of the country, the existence of a double 
government, a double allegiance, a double patriotism. America 
— I call it America (leaving out of sight South and Central 
America, Canada, and Mexico), in order to avoid using at this 
stage the term United States — America is a Commonwealth of 
commonwealths, a Republic of republics, a State which, while 
one, is nevertheless composed of other States even more essen- 
tial to its existence than it is to theirs. 

This is a point of so much consequence, and so apt to be 
misapprehended by Europeans, that a few sentences may be 
given to it. 

When within a large political community smaller communi- 
ties are found existing, the relation of the smaller to the larger 
usually appears in one or other of the two following forms. 

15 



16 THE NATIONAL GOVERNMENT part i 

One form is that of a League, in which a number of political 
bodies, be they monarchies or republics, are bound together so 
as to constitute for certain purposes, and especially for the pur- 
pose of common defence, a single body. The members of such 
a composite body or league are not individual men but com- 
munities. It exists only as an aggregate of communities, and 
will therefore vanish so soon as the communities which com- 
pose it separate themselves from one another. Moreover it 
deals with and acts upon these communities only. With the 
individual citizen it has nothing to do, no right of taxing him, 
or judging him, or making laws for him, for in all these matters 
it is to his own community that the allegiance of the citizen is 
due. A familiar instance of this form is to be found in the 
Germanic Confederation as it existed from 1815 till 1866. The 
Hanseatic League in mediaeval Germany, the Swiss Confedera- 
tion down till the present century, are other examples. 

In the second form, the smaller communities are mere sub- 
divisions of that greater one which we call the Nation. They 
have been created, or at any rate they exist, for administrative 
purposes only. Such powers as they possess are powers dele- 
gated by the nation, and can be overridden by its will. The 
nation acts directly by its own officers, not merely on the com- 
munities, but upon every single citizen ; and the nation, because 
it is independent of these communities, would continue to exist 
were they all to disappear. Examples of such minor commu- 
nities may be found in the departments of modern France and 
the counties of modern England. Some of the English counties 
were at one time, like Kent or Dorset, independent kingdoms 
or tribal districts; some, like Bedfordshire, were artificial 
divisions from the first. All are now merely local administra- 
tive areas, the powers of whose local authorities have been 
delegated from the national government of England. The 
national government docs not stand by virtue of them, docs 
not need them. They might all he abolished or turned into 
wholly different communities without seriously affecting its 

structure. 

The American Federal Republic corresponds to neither of 

these two forms, but may be said to stand between them. Its 
central or aational government is not a mere league, for it does 
not wholly depend on the component communities which we 



chap, ii THE NATION AND THE STATES 17 

call the States. It is itself a commonwealth as well as a union 
of commonwealths, because it claims directly the obedience of 
every citizen, and acts immediately upon him through its courts 
and executive officers. Still less are its minor communities 
the States, mere subdivisions of the Union, mere creatures of 
the national government, like the counties of England or the 
departments of France. They have over their citizens an 
authority which is their own, and not delegated by the central 
government. They have not been called into being by that 
government. They — that is, the older ones among them — 
existed before it. They could exist without it. 

The central or national government and -the State govern- 
ments may be compared to a large building and a set of smaller 
buildings standing on the same ground, yet distinct from each 
other. It is a combination sometimes seen where a great church 
has been erected over more ancient homes of worship. First 
the soil is covered by a number of small shrines and chapels, 
built at different times and in different styles of architecture, 
each complete in itself. Then over them and including them 
all in its spacious fabric there is reared a new pile with its own 
loftier roof, its own walls, which may perhaps rest on and 
incorporate the walls of the older shrines, its own internal plan. 1 
The identity of the earlier buildings has however not been 
obliterated ; and if the later and larger structure were to dis- 
appear, a little repair would enable them to keep out wind and 
weather, and be again what they once were, distinct and sepa- 
rate edifices. So the American States are now all inside the 
Union, and have all become subordinate to it. Yet the Union 
is more than an aggregate of States, and the States are more 
than parts of the Union. It might be destroyed, and they, 
adding some further attributes of power to those they now 
possess, might survive as independent self-governing commu- 
nities. 

This is the cause of that immense complexity which startles 
and at first bewilders the student of American institutions, a 
complexity which makes American history and current Ameri- 

1 1 do not profess to indicate any one building which exactly corresponds to 
what I have attempted to describe, but there are (besides the Church of the 
Holy Sepulchre at Jerusalem) several both in Italy and in Egypt that seem to 
justify the simile. 

VOL. I C 



18 THE NATIONAL GOVERNMENT part i 

can politics difficult to the European, who finds in them phe- 
nomena to which his own experience supplies no parallel. 
There are two loyalties, two patriotisms ; and the lesser patriot- 
ism, as the incident in the Episcopal Convention shows, is jeal- 
ous of the greater. There are two governments, covering the 
same ground, commanding, with equally direct authority, the 
obedience of the same citizen. 

The casual reader of American political intelligence in Euro- 
pean newspapers is not struck by this phenomenon, because 
State politics and State affairs generally are seldom noticed in 
Europe. Even the traveller who visits America does not 
realize its importance, because the things that meet his eye are 
superficially similar all over the continent, and that which 
Europeans call the machinery of government is in America con- 
spicuous chiefly by its absence. But a due comprehension of 
this double organization is the first and indispensable step to 
the comprehension of American institutions : as the elaborate 
devices whereby the two systems of government are kept from 
clashing are the most curious subject of study which those in- 
stitutions present. 

How did so complex a system arise, and what influences 
have moulded it into its present form ? This is a question 
which cannot be answered without a few words of historical 
retrospect. I am anxious not to stray far into history, because 
the task of describing American institutions as they now exist 
is more than sufficiently heavy for one writer and one book. But 
a brief and plain outline of the events which gave birth to the 
Federal system in America, and which have nurtured national 
feeling without extinguishing State feeling, seems the most 
natural introduction to an account of the present Constitution, 
and may dispense Avith the need for subsequent explanations 
and digressions. 



CHAPTEE III 

THE ORIGIN OF THE CONSTITUTION 

When in the reign of George III. troubles arose between 
England and her North American colonists, there existed along 
the eastern coast of the Atlantic thirteen little communities, the 
largest of which (Virginia) had not more than half a million of 
free people, and the totai population of which did not reach 
three millions. All owned allegiance to the British Crown, all,* - 
except Connecticut and Rhode Island, received their governors 
from the Crown ; x in all, causes were carried by appeal from 
the colonial courts to the English Privy Council. Acts of the 
British Parliament ran there, as they now run in the British 
colonies, whenever expressed to have that effect, and could 
over-rale such laws as the colonies might make. But practi- 
cally each colony was a self-governing commonwealth, left to 
manage its own affairs with scarcely any interference from 
home. Each had its legislature, its own statutes adding to or 
modifying the English common law, its local corporate life and 
traditions, with no small local pride in its own history and in- 
stitutions, superadded to the pride of forming part of the Eng- 
lish race and the great free British realm. Between the various 
colonies there was no other political connection than that which 
arose from their all belonging to this race and realm, so that 
the inhabitants of each enjoyed in every one of the others the 
rights and privileges of British subjects. 

When the oppressive measures of the home government 
roused the colonies, they naturally sought to organize their 
resistance in common. 2 Singly they would have been an easy 

1 In Maryland and Pennsylvania, however, the governor was, during the 
larger part of the colonial period, appointed hy the " Proprietor." 

2 There had been a congress of delegates from seven colonies at Albany in 
1754 to deliberate on measures relative to the impending war with France, but 
this, of course, took place with the sanction of the mother country, and was 
a purely temporary measure. 

19 



20 THE NATIONAL GOVERNMENT part i 

prey, for it was long doubtful whether even in combination 
they could make head against regular armies. A congress of 
delegates from nine colonies held at Xew York in 1765 was 
followed by another at Philadelphia in 1774, at which twelve 
were represented, which called itself Continental (for the name 
American had not yet become established), 1 and spoke in the 
name of " the good people of these colonies," the first asser- 
tion of a sort of national unity among the English of America. 
This congress, in which from 1775 onwards all the colonies 
were represented, was a merely revolutionary body, called into 
existence by the war with the mother country. But in 1776 it 
declared the independence of the colonies, and in 1J77 it gave 
itself a new -legal character by framing the " Articles of Con- 
federation and Perpetual Union," 2 whereby the thirteen States 
(as they then called themselves) entered into a " firm league 
of friendship " with each other, offensive and defensive, while 
declaring that " each State retains its sovereignty, freedom, 
and independence, and every power, jurisdiction, and right 
which is not by this Confederation expressly delegated to the 
United States in Congress assembled." 

This Confederation, which was. not ratified by all the States 
till 1781, was rather a league than a national government, for 
it possessed no central authority except an assembly in which 
every State, the largest and the smallest alike, had one vote, and 
this assembly had no jurisdiction over the individual citizens. 
There was no Federal executive, no Federal judiciary, no 
means of raising money except by the contributions of the 
States, contributions which they were slow to render, no power 
of compelling the obedience either of States or individuals to 
the commands of Congress. The plan corresponded to the 
wishes of the colonists, who did not yet deem themselves a 
nation, and who in their struggle against the power of the British 
Crown were resolved to set over themselves no other power, not 
even one of their own choosing. But it worked badly even 
while the struggle lasted, and after the immediate danger from 

i Till the middle of lasl centurythe name " American'' seems to have denoted 
the aative Indians, asil does in Wesley's hymn " The .lark Americans convert." 
So Sir Thomas Browne writes "As forsopition of reason ami the diviner particle 

from drink, tho' American religion approve, and Pagan piety of old hath prac- 
tised it, etc." The War of Independence gave the word its present meaning. 
8 See these Art iclcs in the Appendix at the end of this volume. 



chap, in THE OKIGIN OF THE CONSTITUTION 21 



England had been removed by the peace of 1783, it worked still 
worse, and was in fact, as Washington said, no better than an- 
archy. The States were indifferent to Congress and their 
common concerns, so indifferent that it was found difficult to 
procure a quorum of States for weeks or even months after the 
day fixed for meeting. Congress was impotent, and commanded 
respect as little as obedience. Much distress prevailed in the 
trading States, and the crude attempts which some legislatures 
made to remedy the depression by emitting inconvertible paper, 
by constituting other articles than the precious metals legal 
tender, and by impeding the recovery of debts, aggravated the 
evil, and in several instances led to seditious outbreaks. 1 The 
fortunes of the country seemed at a lower ebb than even during 
the war with England. 

Sad experience of their internal difficulties, and of the con- 
tempt with which foreign governments treated them, at last pro- 
duced a feeling that some firmer and closer union was needed. 
A convention of delegates from five States met at Annapolis in 
Maryland in 1786 to discuss methods of enabling Congress to 
regulate commerce, which suffered grievously from the varying 
and often burdensome regulations imposed by the several States. 
It drew up a report which condemned the existing state of 
things, declared that reforms were necessary, and suggested a 
further general convention in the following year to consider 
the condition of the Union and the needed amendments in its 
Constitution. Congress, to which the report had been pre- 
sented, approved it, and recommended the States to send dele- 
gates to a convention, which should "revise the Articles of 
Confederation, and report to Congress and the several legis- 
latures such alterations and provisions therein as shall, when 
agreed to in Congress and confirmed by the States, render the 
Federal Constitution adequate to the exigencies of government 
and the preservation of the Union." 

The Convention thus summoned met at Philadelphia on the 

1 Rhode Island was the most conspicuous offender. This singular little 
commonwealth, whose area is 1085 square miles (less than that of Ayrshire or 
Antrim), is of all the American States that which has furnished the most 
abundant analogies to the republics of antiquity, and which best deserves to 
have its annals treated of by a philosophic historian. The example of her 
disorders did much to bring the other States to adopt that Federal Constitution 
which she was herself the last to accept. > 



22 THE NATIONAL GOVERNMENT part i 

14th May 1787, became competent to proceed to busines 
May 25th, when seven States were represented, and chose 
George Washington to preside. Delegates attended from every 
State bnt Rhode Island, and among these delegates was to be 
found nearly all the best intellect and the ripest political expe- 
rience the United States then contained. The instructions they 
had received limited their authority to the revision of the 
Articles of Confederation and the proposing to Congress and 
the State legislatures such improvements as were required 
therein. 1 But with admirable boldness, boldness doubly admi- 
rable in Englishmen and lawyers, the majority ultimately re- 
solved to disregard these restrictions, and to prepare a wholly 
new Constitution, to be considered and ratified neither by 
Congress nor by the State legislatures, but by the peoples of 
the several States. 

This famous assembly, which consisted of fifty-five delegates, 
thirty-nine of whom signed the Constitution which it dratted, 
sat nearly five months, and expended upon its work an amount 
of labour and thought commensurate with the magnitude of 
the task and the splendour of the result. The debates were 
secret, a proof of the confidence reposed in the members : and 
it was well that they were secret, for criticism from without 
might have imperilled a work which seemed repeatedly on the 
point of breaking down, so great were the difficulties encoun- 
tered from the divergent sentiments and interests of different 
parts of the country, as well as of the larger and smaller Si 

1 It was strongly urged when the draft Constitution came np for ratiiiea- 
tion in the State Conventions that the Philadelphia Convention had do power 
to do more than amend the Articles of Confederation. To these objections 
Mr. Wilson, speaking in the Pennsylvania Convention, made answer as fol- 
lows:— "The. husiness, we are told, which was intrusted to the late Con- 
vention was merely to amend the presenl Articles of Confederation. This 
observation has been frequently made, and has often brought to my mind a 
story thai is related of Mr. Pope, who it is well known was not a li; 
formed, [t was ensiomary for him to use this phrase, 'God mend me,' when 
any little accidenl happened, (hie evening a link boy was lighting him along, 
and coming to a gutter the hoy jumped nimbly over it. Mr. Pope called to 
him to turn, adding 'God mend me!" The arch rogue, turning bo light him. 
looked at him and repeated 'Cod mend you! lie would sooner make half a 
dozen lirw ours.' This would apply to the presenl Confederation, for it would 
be easier to make another than to amend this." Elliot's M7..'/. *, vol. ii. 
p. IT::. 

- Benjamin Franklin, who was one of the delegal s from Pennsylvania 
(being then eighty-one years o( age), was ^<> much distressed at the difficulties 



chap, in THE ORIGIN OF THE CONSTITUTION 23 

The records of the Convention were left in the hands of Wash- 
ington, who in 1796 deposited them in the State Department. 
In 1819 they were published along with the notes of the dis- 
cussions kept by James Madison (afterwards twice President), 
who had proved himself one of the most useful members of 
the body. From these official records and notes x the history 
of the Convention has been written. 

-' It is hard to-day, even for Americans, to realize how enor- 
mous those difficulties were. The Convention had not only to 
create de novo, on the most slender basis of pre-existing national 
institutions, a national government for a widely scattered peo- 
ple, but they had in doing so to respect the fears and jealousies 
and apparently irreconcilable interests of thirteen separate 
commonwealths, to all of whose governments it was necessary 
to leave a sphere of action wide enough to satisfy a deep-rooted 
local sentiment, yet not so wide as to imperil national unity. 2 
Well might Hamilton say : " The establishment of a Constitu- 
tion, in time of profound peace, by the voluntary consent of a 

which arose and the prospect of failure that he proposed that the Convention, 
as all human means of obtaining agreement seemed to he useless, should open 
its meetings with prayer. The suggestion, remarkable as coming from one 
so well known for his sceptical opinions, would have been adopted but for 
the fear that the outside public might thus learn how grave the position of 
affairs was. The original of Franklin's proposition, written in his own still 
clear and firm hand, with his note stating that only three or four agreed 
with him, is preserved in the State Department at Washington, where may 
be also seen the draft of the Constitution with the signatures of the thirty- 
nine delegates. 

1 They are printed in the work called Elliot's Debates, which also contains 
the extremely interesting debates in some of the State Conventions which rati- 
fied the Constitution. 

For some remarks on Constitutional Conventions in general, see the note to 
this chapter at the end of this volume. 

2 The nearest parallels to such a Federal Union as that formed in 1789 
were then to be found in the Achaean and Lycian Leagues, which, how- 
ever, were not mere leagues, but federated nations. Both are referred to by 
the authors of the Federalist (see post) f but their knowledge was evidently 
scanty. The acuteness of James Wilson had perceived that the two famous 
confederations of modern Europe did not supply a model for America. He 
observed in the Pennsylvania Convention of 1788: "The Swiss cantons are 
connected only by alliances. The United Netherlands are indeed an assem- 
blage of societies ; but this assemblage constitutes no new one, and therefore 
it does not correspond with the full definition of a Confederate Republic." — 
Elliot's Debates, vol. ii. p. 422. The Swiss Confederation has now become a 
Republic at once Federal and national, resembling in most respects its Ameri- 
can model. 



24 THE NATIONAL GOVERNMENT part i 

whole people, is a prodigy to the completion of which I look 
forward with trembling anxiety." 1 And well might he quote 
the words of David Hume (Essays; "The Rise of Arts and 
Sciences " ) : " To balance a large State or society, whether 
monarchical or republican, on general laws, is a work of so 
great difficulty that no human genius, however comprehensive, 
is able by the mere dint of reason and reflection to effect it. 
The judgments of many must unite in the work : experience 
must guide their labour ; time must bring it to perfection ; and 
the feeling of inconveniences must correct the mistakes which 
they inevitably fall into in their first trials and experiments." 
* It was even a disputable point whether the colonists were 
already a nation or only the raw material out of which a nation 
might be formed. 2 There were elements of unity, there were 
also elements of diversity. All spoke the same language. All, 
except a few descendents of Dutchmen and Swedes in New 
York and Delaware, some Germans in Pennsylvania, some 
children of French Huguenots in New England and the middle 
States, belonged to the same race. 3 All, except some Roman 
Catholics in Maryland, professed the Protestant religion. All 
were governed by the same English Common Law, and prized 
it not only as the bulwark which had sheltered their forefathers 
from the oppression of the Stuart kings, but as the basis of 
their more recent claims of right against the encroachments 
of George III. and his colonial officers. In ideas and habits of 
life there was less similarity, but all were republicans, manag- 
ing their affairs by elective legislatures, attached to local self- 
government, and animated by a common pride in their snc 
ful resistance to England, which they then hated with a true 
family hatred, a hatred to which her contemptuous treatment 
of them added a sting. 

1 Federalist, No. lxxxv. 

2 Mr. Wilson said in the Pennsylvania Convention of 17S7 : "By adopting 
this Constitution we shall become ;i nation; we are not now one. We shall 
form a national character: we arc now too dependenl on others." He pro- 
ceeds with a remarkable prediction of the influence which American fi 
would exert upon the Old World. — Elliot's 1>, bates, vol. ii. p. 526. 

8 The Irish, a noticeable .-lenient in North Carolina and parts of Pennsyl- 
vania, Virginia, and New Hampshire, were no1 Catholic Celts hut Scoto-Irish 
Presbyterians from Ulster, who, animated by resentmenl at the wrongs and 
religious persecution they had Buffered at home, had been among the foremost 
combatants in the Revolutionary War. 



chap, in THE ORIGIN OF THE CONSTITUTION 25 

On the other hand their geographical position made com- 
munication very difficult. The sea was stormy in winter ; the 
roads were bad; it took as long to travel by land from Charles- 
ton to Boston as to cross the ocean to Europe, nor was the 
journey less dangerous. The wealth of some States consisted 
in slaves, of others in shipping ; while in others there was a 
population of small farmers, characteristically attached to old 
habits. Manufactures had hardly begun to exist. The senti- 
ment of local independence showed itself in intense suspicion 
of any external authority ; and most parts of the country were 
so thinly peopled that the inhabitants had lived practically 
without any government, and thought that in creating one they 
would be forging fetters for themselves. But while these 
diversities and jealousies made union difficult, two dangers 
were absent which have beset the framers of constitutions for 
other nations. There were no reactionary conspirators to be 
feared, for every one prized liberty and equality. There were 
no questions between classes, no animosities against rank and 
wealth, for rank and Avealth did not exist. 

It was inevitable under such circumstances that the Consti- 
tution, while aiming at the establishment of a durable central 
power, should pay great regard to the existing centrifugal 
forces. It was and remains what its authors styled it, emi- 
nently an instrument of compromises ; it is perhaps the most 
successful instance in history of what a judicious spirit of 
compromise may effect. 1 Yet out of the points which it was 
for this reason obliged to leave unsettled there arose fierce 
controversies, which after two generations, when accumulated 
irritation and incurable misunderstanding had been added to 
the force of material interests, burst into flame in the War of 
Secession. 

The draft Constitution was submitted, as its last article pro- 
vided, to conventions of the several States (i.e. bodies spe- 
cially chosen by the people for the purpose) for ratification. It 

1 Hamilton observed of it in 1788: "The result of the deliberations of all 
collective bodies must necessarily be a compound as well of the errors and 
prejudices as of the good seuse and wisdom of the individuals of whom they 
are composed. The compacts which are to embrace thirteen distinct States 
in a common bond of amity and union must as necessai-ily be a compromise 
of as many dissimilar interests and inclinations. How can perfection spring 
from such materials? " — Federalist, No. lxxxv. 



26 THE NATIONAL GOVERNMENT part i 

was to come into effect as soon as nine States had ratified, the 
effect of which would have been, in case the remaining States, 
or any of them, had rejected it, to leave such States standing 
alone in the world, since the old Confederation was of course 
superseded and annihilated. Fortunately all the States did 
eventually ratify the new Constitution, but two of the most 
important, Virginia and New York, 1 did not do so till the mid- 
dle of 1788, after nine others had already accepted it; and 
two, North Carolina and Rhode Island, at first refused, and 
only consented to enter the new Union more than a year later, 
when the government it had created had already come into 
operation. 

There was a struggle everywhere over the adoption of 
the Constitution, a struggle presaging the birth of the two 
great parties that for many years divided the American 
people. vThe chief source of hostility was the belief that a 
strong central government endangered both the rights of the 
States and the liberties of the individual citizen. Freedom, it 
was declared, would perish, freedom rescued from George III. 
would perish at the hands of her own children. 2 Consolida- 
tion (for the word centralization had not yet been invented) 
would extinguish the State governments and the local institu- 
tions they protected. The feeling Avas very bitter, and in some 
States, notably in Massachusetts and New York, the majorities 
were dangerously narrow. Had the decision been left to what 
is now called "the voice of the people,'' that is, to the mass of 
the citizens all over the country, voting at the polls, the voice 
of the people would probably have pronounced against the 
Constitution, and this would have been still more likely if the 
question had been voted on everywhere upon the same day. 
seeing that several doubtful States were influenced by the 

1 Virginia was then much the largest State (population in ITi'O. 747,610). 
New York was reckoned anion-- the smaller States (population 340,120) but 
her centra] geographical position made her adhesion extremely important. 

2 In the Massachusetts Convention of 1788 Mr. Nason delivered himself of 
the following pathetic appeal: "And here, sir, I beg the indulgence of this 
honourable body to permit me to make a slant apostrophe to Liberty, o Lib- 
erty, tlion greatest good ! thou fairest property ! with tliee 1 wish to live — 
With thee I wish to die ! Pardon me if 1 drop a tear on the peril to which she 
is exposed. I cannot, sir, see this highest of jewels tarnished —a jewel worth 
ten thousand worlds: and shall we part with it so soon? Oh no.*'— Elliot's 
Debates, ii. 183. 



chap, in THE OKIGIN OF THE CONSTITUTION 27 

approval which other States had already given. But the mod- 
ern " plebiscital " method of taking the popular judgment had 
not been invented. The question was referred to conventions 
in the several States. The conventions were composed of able 
men, who listened to thoughtful arguments, and were themselves 
influenced by the authority of their leaders. The counsels 
of the wise prevailed over the prepossessions of the multitude. 
Yet these counsels would hardly have prevailed but for a 
cause which is apt to be now overlooked. This was the dread 
of foreign powers. 1 The United States had at that time two 
European monarchies, Spain and England, as its neighbours on 
the American continent. France had lately held territories to 
the north of them in Canada, and to the south and west of 
them in Louisiana. 2 She had been their ally against England, 
she became in a few years again the owner of territories west 
of the Mississippi. The fear of foreign interference, the sense 
of weakness, both at sea and on land, against the military 
monarchies of Europe, was constantly before the mind of 
American statesmen, and made them anxious to secure at all 
hazards a national government capable of raising an army and 
navy, and of speaking with authority on behalf of the new 
republic. It is remarkable that the danger of European aggres- 
sion or complications was far more felt in the United States 
from 1783 down till about 1820, than it has been during the 
last half century when steam has brought Europe five times 
nearer than it then was. 

Several of the conventions which ratified the Constitution 
accompanied their acceptance with an earnest recommendation 
of various amendments to it, amendments designed to meet 
the fears of those who thought that it encroached too far upon 
the liberties of the people. Some of these were adopted, im- 

1 The other chief cause was the economic distress and injury to trade con- 
sequent on the disorganized condition of several States. See the observations 
of Mr. "Wilson in the Pennsylvania Convention (Elliot's Debates, ii. 524). He 
shows that the case was one of necessity, and winds up with the remark, 
"The argument of necessity is the patriot's defence as well as the tyrant's 
plea." 

2 The vast territory then called Louisiana was transferred by France to 
Spain in 1762, hut Spanish government was not established there till 1789. It 
was ceded by Spain to France in 1800, and purchased by the United States 
from Napoleon in 1803. Spain had originally held Florida, ceded it to Britain 
in 1763, received it back in 1783, and in 1819 sold it to the United States. 



28 THE NATIONAL GOVERNMENT part i 

mediately after the original instrument had come into force, 
by the method it prescribes, viz. a two-thirds majority in Con- 
gress and a majority in three-fourths of the States. They are 
the amendments of 1791, ten in number, and they constitute 
what the Americans, following a venerable English precedent, 
call a Bill or Declaration of Eights. 

The Constitution of 1789 l deserves the veneration with 
which the Americans have been accustomed to regard it. It is 
true that many criticisms have been passed upon its arrange- 
ment, upon its omissions, upon the artificial character of some 
of the institutions it creates. Recognizing slavery as an insti- 
tution existing in some States, and not expressly negativing 
the right of a State to withdraw from the Union, it has been 
charged with having contained the germ of civil war, though 
that germ took seventy years to come to maturity. And what- 
ever success it has attained must be in large measure ascribed 
to the political genius, ripened by long experience, of the 
Anglo-American race, by whom it has been worked, and who 
might have managed to work even a worse drawn instrument. 
Yet, after all deductions, it ranks above every other written 
constitution for the intrinsic excellence of its scheme, its adap- 
tation to the circumstances of the people, the simplicity, brevity, 
and precision of its language, its judicious mixture of definite- 
ness in principle with elasticity in details. 2 One is therefore 
induced to ask, before proceeding to examine it, to what causes. 
over and above the capacity of its authors, and the patient toil 
they bestowed upon it, these merits are due, or in other words, 
what were the materials at the command of the Philadelphia 
Convention for the achievement of so great an enterprise as the 

1 One may call the Constitution after either the year 17S7. when it was 
drafted, or the year 1788, when it was accepted by the requisite number of 
States, or the year 1789, when it took full effect, the Congress o( the Confed- 
eration having tixed the first Wednesday in March in that year as the day 
when it should come into force. The year 1789 has the advantage of being 
easily remembered, because it coincides with the beginning of the great revo- 
lutionary movements of modern Europe. The Confederation may be taken 
to have expired with the expiry of its Congress, and its Congress died for want 
of a quorum. 

2 The literary Bostonians laid hold at once of its style as proper for admira- 
tion. Mr. Ames said in the Massachusetts Convention of iTss, "Considered 
merely as a literary performance, the Constitution is an honour to our country. 
Legislators have at length condescended to speak the language of philosophy." 
— Elliot's Debates, ii. .v.. 



THE ORIGIN OF THE CONSTITUTION {/^\ 



29 



creation of a nation by means of an instrument of government. 
The American Constitution is no exception to the rule that 
everything which has power to win the obedience and respect 
of men must have its roots deep in the past, and that the more 
slowly every institution has grown, so much the more enduring 
is it likely to prove. There is little in this Constitution that 
is absolutely new. There is much that is as old as Magna 
Charta. 

The men of the Convention had the experience of the Eng- 
lish Constitution. That Constitution, very different then from 
what it is now, was even then not quite what they thought it. 
Their view was tinged not only by recollections of the influence 
exercised by King George the Third, an influence due to transi- 
tory causes, but which made them overrate its monarchical ele- 
ment, 1 but also by the presentation of it which they found in 
the work of Mr. Justice Blackstone. He, as was natural in a 
lawyer and a man of letters, described rather its theory than its 
practice, and its theory was many years behind its practice. 
The powers and functions of the cabinet, the overmastering 
force of the House of Commons, the intimate connection 
between legislation and administration, these which are to us 
now the main characteristics of the English Constitution were 
still far from fully developed. But in other points of funda- 
mental importance they appreciated and turned to excellent 
account its spirit and methods. 

They had for their oracle of political philosophy the treatise 
of Montesquieu on the Spirit of Laws, which, published anony- 
mously 'at Geneva forty years before, had won its way to an 
immense authority on both sides of the ocean. Montesquieu, 
contrasting the private as well as public liberties of Eng- 
lishmen with the despotism of Continental Europe, had taken 
the Constitution of England as his model system, and had 
ascribed its merits to the division of legislative, executive, and 
judicial functions which he discovered in it, and to the system 
of checks and balances whereby its equilibrium seemed to be 
preserved. No general principle of politics laid such hold on 

1 There is a tendency in colonists to over-estimate the importance of the 
Crown, whose conspicuous position as the authority common to the whole 
empire makes it an object of special interest and respect to persons living 
at a distance. It touches their imagination, whereas assemblies excite their 
criticism. 



30 THE NATIONAL GOVERNMENT part i 

the constitution-makers and statesmen of America as the 
dogma that the separation of these three functions is essen- 
tial to freedom, it- had already been made the groundwork 
of several State constitutions. It is always reappearing in 
their writings: it was never absent from their thoughts. Of 
the supposed influence of other Continental authors such as 
Kousseau, or even of English thinkers such as Burke, there are 
few direct traces in the Federal Constitution or in the classical 
contemporaneous commentary on and defence of it 1 which we 
owe to the genius of Hamilton and his less famous coadjutors, 
Madison and Jay. But we need only turn to the Declaration of 
Independence and the original constitutions of the States, par- 
ticularly the Massachusetts Constitution of 1780, to perceive 
that abstract theories regarding human rights had laid firm 
hold on the national mind. Such theories naturally expanded 
with the practice of republican government, and have at various 
times been extremely potent factors in American history. But 
the influence of France and her philosophers belongs chiefly to 
the years succeeding 1789, when Jefferson, who was fortu- 
nately absent in Paris during the Constitutional Convention, 
headed the democratic propaganda. 

Further, they had the experience of their colonial and State 
governments, and especially, for this was freshest and most in 
point, the experience of the working of the State Constitutions, 
framed at or since the date when the colonies threw off their 
English allegiance. Many of the Philadelphia delegates had 
joined in preparing these instruments : all had been able to 
watch and test their operation. They compared notes as to the 
merits, tested by practice, of the devices which their States had 
respectively adopted. They had the inestimable advantag 
knowing written or rigid constitutions in the concrete ; that is 
to say, of comprehending how a system of government actually 
moves and plays under the control of a mass of statutory pro- 
visions denning and limiting the powers of its several organs. 
The so-called Constitution of England consists Largely of 
customs, precedents, traditions, understandings, often vague 
and always flexible. It was quite a different thing, and for the 

1 The Federalist^ a scries of papers published in the New York newspapers 
in advocacy of the Federal Constitution when the question of accepting it was 
coming' before the New York Slate Convention. 



chap, in THE ORIGIN OF THE CONSTITUTION 31 

purpose of making a constitution for the American nation an 
even more important thing, to have lived under and learnt to 
work systems determined by the hard and fast lines of a single 
document having the full force of law, for this experience 
taught them how much might safely be included in such a 
document, and how far room must be left under it for unpre- 
dictable emergencies and unavoidable development. 

Lastly, they had in the principle of the English common 
law that an act done by any official person or law-making body 
beyond his or its legal competence is simply void, a key to 
the difficulties involved in the establishment of a variety of 
authorities not subordinate to one another, but each supreme 
in its own defined sphere. The application of this principle 
made it possible not only to create a National government which 
should leave free scope for the working of the State govern- 
ments, but also so to divide the powers of the National govern- 
ment among various persons and bodies as that none should 
absorb or overbear the others. By what machinery these 
objects were attained will appear when we come to consider 
the effect of a written or rigid constitution embodying a funda- 
mental law, and the functions of the judiciary in expounding 
and applying such a law. 1 

i See post, Chapters XXIII. and XXXIII. 



CHAPTER IV 

NATURE OF THE FEDERAL GOVERNMENT 

The acceptance of the Constitution of 1789 made the Ameri- 
can people a nation. It turned what had been a League of 
States into a Federal State, by giving it a National Govern- 
ment with a direct authority over all citizens. But as this 
national government was not to supersede the governments of 
the States, the problem which the Constitution-makers had 
to solve was two-fold. They had to create a central govern- 
ment. They had also to determine the relations of this cen- 
tral government to the States as well as to the individual 
citizen. An exposition of the Constitution and criticism of its 
working must therefore deal with it in these two aspects, as a 
system of national government built up of executive powers 
and legislative bodies, like the monarchy of England or the 
republic of France, and as a Federal s}*stem linking together 
and regulating the relations of a number of commonwealths 
which are for certain purposes, but for certain purposes only, 
subordinated to it. It will conduce to clearness if these two 
aspects are kept distinct ; and the most convenient course will 
be to begin with the former, and first to describe the American 
system as a National system, leaving its Federal character for 
the moment on one side. 

It must, however, be remembered that the Constitution does 
not profess to be a complete scheme of government, creating 
organs for the discharge of all the functions and duties which 
a civilized community undertakes. It presupposes the state 
governments. It assumes their existence, their wide and con- 
stant activity. It is a scheme designed to provide for the dis- 
charge of such and so many functions of government as the 
States did not, and indeed could not, or at any rate could not 
adequately, possess and discharge. It is therefore, so to speak, 

32 



chap, iv NATURE OF THE FEDERAL GOVERNMENT 33 

the complement and crown of the State Constitutions, which 
must be read along with it and into it in order to make it cover 
the whole field of civil government, as do the Constitutions of 
such countries as France, Belgium, Italy. 

The administrative, legislative, and judicial functions for 
which the Federal Constitution provides are those relating to 
matters which must be deemed common to the whole nation, 
either because all the parts of the nation are alike interested 
in them, or because it is only by the nation as a whole that 
they can be satisfactorily undertaken. The chief of these 
common or national matters are * — 

War and peace : treaties and foreign relations generally. 

Army and navy. 

Federal courts of justice. 

Commerce, foreign and domestic. 

Currency. 

Copyright and patents. 

The post-office and post roads. 

Taxation for the foregoing purposes, and for the general 

support of the Government. 
The protection of citizens against unjust or discriminating 

legislation by any State. 2 

This list includes the subjects upon which the national legis- 
lature has the right to legislate, the national executive to 
enforce the Federal laws and generally to act in defence of 
national interests, the national judiciary to adjudicate. All 
other legislation and administration is left to the several 
States, without power of interference by the Federal legisla- 
ture or Federal executive. 

Such then being the sphere of the National government, let 
us see in what manner it is constituted, of what departments 
it consists. 

1 The full list will be found in the Constitution, Art. i. § 8 (printed in the 
Appendix) , with which may he compared the British North America Act 1867 
(30 and 31 Vict. cap. 8), and the Federal Council of Australasia Act 1885 (48 
and 49 Vict. cap. 60), the Swiss Constitution of 1874 (Arts. 8, 22, 30, 42, 54, 64, 
67-70) , and the interesting draft Constitution of the Commonwealth of Austra- 
lia, prepared by the Sydney Convention of 1891. 

2 Amendments xiv. and xv. 

VOL. I D 



34 THE NATIONAL GOVERNMENT part i 

The framers of this government set before themselves four 
objects as essential to its excellence, viz. — 

Its vigour and efficiency. 

The independence of each of its departments (as being essen- 
tial to the permanency of its form). 
Its dependence on the people. 
The security under it of the freedom of the individual. 

The first of these objects they sought by creating a strong 
executive, the second by separating the legislative, executive, 
and judicial powers from one another, and by the contrivance 
of various checks and balances, the third by making all authori- 
ties elective and elections frequent, the fourth both by the 
checks and balances aforesaid, so arranged as to restrain any 
one department from tyranny, and by placing certain rights of 
the citizen under the protection of the written Constitution. 

They had neither the rashness nor the capacity necessary for 
constructing a Constitution a priori. There is wonderfully little 
genuine inventiveness in the world, and perhaps least of all has 
been shown in the sphere of political institutions. These men, 
practical politicians who knew how infinitely difficult a business 
government is, desired no bold experiments. They preferred, 
so far as circumstances permitted, to walk in the old paths, to 
follow methods which experience had tested. 1 Accordingly 
they started from the system on which their own colonial gov- 
ernments, and afterwards their State governments, had been 
conducted. This system bore a general resemblance to the 
British Constitution ; and in so far it may with truth be said 
that the British Constitution became a model for the new 
national government. They held England to be the freest and 
best-governed country in the world, but were resolved to avoid 
the weak points which had enabled King George III. to play 
the tyrant, and which rendered English liberty, as they thought, 

1 Mr. Lowell has said with equal point and truth of the men of the Conven- 
tion: "They had a profound disbelief in theory and knew hotter than to 
commit the folly of breaking with the past. They were not seduced by the 
French fallacy that a new system of Government could be ordered like a new 
suit of clothes. They would as soon have thought of ordering a suit of flesh 
and skin. It is only on the roaring loom of time tiiat the stuff is woven for 
such a vesture of their thought and experience as they were meditating." — 
Address on Democracy, delivered Oct. 6, 1884. 



chap, iv NATURE OF THE FEDERAL GOVERNMENT 35 

far inferior to that which the constitutions of their own States 
secured. With this venerable mother, and these children, bet- 
ter in their judgment than the mother, before their eyes, they 
created an executive magistrate, the President, on the model of 
the State Governor, and of the British Crown. They created a 
legislature of two Houses, Congress, on the model of the two 
Houses of their State legislatures, and of the British Parlia- 
ment. And following the precedent of the British judges, irre- 
movable except by the Crown and Parliament combined, they 
created a judiciary appointed for life, and irremovable save by 
impeachment. 1 

In these great matters, however, as well as in many lesser 
matters, they copied not so much the Constitution of England 
as the Constitutions of their several States, in which, as was 
natural, many features of the English Constitution had been 
embodied. It has been truly said that nearly every provision 
of the Federal Constitution that has worked well is one bor- 
rowed from or suggested by some State constitution ; nearly 
every provision that has worked badly is one which the Con- 
vention, for want of a precedent, was obliged to devise for itself. 
To insist on this is not to detract from the glory of that illus- 
trious body, for if we are to credit them with less inventiveness 
than has sometimes been claimed for them, we must also credit 
them with a double portion of the wisdom which prefers experi- 
ence to a priori theory, and the sagacity which selects the best 
materials from a mass placed before it, aptly combining them 
to form a new structure. 2 

Of minor divergences between their work and the British 
Constitution I shall speak subsequently. But one profound 
difference must be noted here. The British Parliament had 
always been, was then, and remains now, a sovereign and con- 
stituent assembly. It can make and unmake any and every 
law, change the form of government or the succession to the 
crown, interfere with the course of justice, extinguish the most 

1 Minor differences between the English and American systems are that the 
American Federal judge is appointed by the President, " with the advice and 
consent of the Senate," an English judge by the Crown alone: an American 
judge is impeachable by the House of Representatives, and tried by the Senate, 
an English judge is removable by the Crown on an address by both Houses. 

2 See note to this chapter in the Appendix for further remarks on the influ- 
ence of the State Constitutions. 



36 THE NATIONAL GOVERNMENT part i 

sacred private rights of the citizen. Between it and the peo- 
ple at large there is no legal distinction, because the whole plen- 
itude of the people's rights and powers resides in it, just as if 
the whole nation were present within the chamber where it sits. 
In point of legal theory it is the nation, being the historical 
successor of the Folk Moot of our Teutonic forefathers. Both 
practically and legally, it is to-day the only and the sufficient 
depository of the authority of the nation; and is therefore, 
within the sphere of law, irresponsible and omnipotent. 

In the American system there exists no such body. Not 
merely Congress alone, but also Congress and the President 
conjoined, are subject to the Constitution, and cannot move a 
step outside the circle which the Constitution has drawn around 
them. If they do, they transgress the law and exceed their 
powers. Such acts as they may do in excess of their powers 
are void, and may be, indeed ought to be, treated as void by the 
meanest citizen. The only power which is ultimately sovereign, 
as the British Parliament is always and directly sovereign, is 
the people of the States, acting in the manner prescribed by the 
Constitution, and capable in that manner of passing any law 
whatever in the form of a constitutional amendment. 

This fundamental divergence from the British system is 
commonly said to have been forced upon the men of 1787 by 
the necessity, in order to safeguard the rights of the several 
States, of limiting the competence of the national government. 1 
But even supposing there had been no States to be protected, 
the jealousy which the American people felt of those whom they 
chose to govern them, their fear lest one power in the govern- 
ment should absorb the rest, their anxiety to secure the pri- 
mordial rights of the citizens from attack, either by magistrate 
or by legislature, would doubtless have led, as happened with 
the earlier constitutions of revolutionary France, to the crea- 
tion of a supreme constitution or fundamental instrument of 
government, placed above and controlling the national legis- 
lature itself. They had already such fundamental instrument. 
in the charters of the colonies, which had passed into the von- 

1 It is often assumed by writers on constitutional subjects that a Federal 
Government presupposes a written or Rigid constitution. This is not neces- 
sarily so. There may be, ami have been) federations with no fundamental 
law unalterable by the usual legislative authority. The Achaean Leajpe had 
apparently none. 



chap, iv NATURE OE THE EEDERAL GOVERNMENT 37 

stitutions of the several States ; and they would certainly have 
followed, in creating their national constitution, a precedent 
which they deemed so precious. 

The subjection of all the ordinary authorities and organs of 
government to a supreme instrument expressing the will of the 
sovereign people, and capable of being altered by them only, 
has been usually deemed the most remarkable novelty of the 
American system. But it is merely an application to the wider 
sphere of the nation, of a plan approved by the experience of 
the several States. And the plan had, in these States, been the 
outcome rather of a slow course of historical development than 
of conscious determination taken at any one point of their prog- 
ress from petty settlements to powerful republics. Neverthe- 
less, it may well be that the minds of the leaders who guided 
this development were to some extent influenced and inspired 
by recollections of the English Commonwealth of the seven- 
teenth century, which had seen the establishment, though for 
a brief space only, of a genuine supreme or rigid constitution, in 
the form of the famous Instrument of Government of a.d. 1653, 
and some of whose sages had listened to the discourses in which 
James Harrington, one of the most prescient minds of that 
great age, showed the necessity for such a constitution, and 
laid down its principles, suggesting that, in order to give it the 
higher authority, it should be subscribed by the people them- 
selves. 

We may now proceed to consider the several departments of 
the National Government. It will be simplest to treat of each 
separately, and then to examine the relations of each to the 
others, reserving for subsequent chapters an account of the rela- 
tions of the National Government as a whole to the several 
States. 



CHAPTER V 

THE PRESIDENT 

Every one who undertakes to describe the American system 
of government is obliged to follow the American division of it 
into the three departments — Executive, Legislative, Judicial. 
I begin with the executive, as the simplest of the three. 

The President is the creation of the Constitution of 1789. 
Under the Confederation there was only a presiding officer of 
Congress, but no head of the nation. 

Why was it thought necessary to have a President at all ? 
The fear of monarchy, of a strong government, of a centralized 
government, prevailed widely in 1787. George III. was an 
object of hatred : he remained a bogey to succeeding genera- 
tions of American children. The Convention found it ex- 
tremely hard to devise a satisfactory method of choosing the 
President, nor has the method they adopted proved satisfactory. 
That a single head is not necessary to a republic might have 
been suggested to the Americans by those ancient examples to 
which they loved to recur. The experience of modern Switzer- 
land has made it still more obvious to us now. Yet it was 
settled very early in the debates of 1787 that the central execu- 
tive authority must be vested in one person ; and the oppo- 
nents of the draft Constitution, while quarrelling with his 
powers, did not accuse his existence. 

The explanation is to be found not so much in a wish to 
reproduce the British Constitution as in the familiarity of the 
Americans, as citizens of the several Stales, with the office of 
State governor (in some States then called President) and in 
their disgust with the feebleness which Congress had shewn 
under the Confederation in its conduct of the war, and, after 
peace was concluded, of the general business of the country. 
Opinion called for a man. because an assembly had been found 

38 



chap, v THE PRESIDENT 39 

to lack promptitude and vigour. And it may be conjectured 
that the alarms felt as to the danger from one man's predomi- 
nance were largely allayed by the presence of George Washing- 
ton. Even while the debates were proceeding, every one must 
have thought of him as the proper person to preside over the 
Union as he was then presiding over the Convention. The 
creation of the office would seem justified by the existence of 
a person exactly fitted to fill it, one whose established influence 
and ripe judgment would repair the faults then supposed to 
be characteristic of democracy, its impulsiveness, its want of 
respect for authority, its incapacity for pursuing a consistent 
line of action. 

Hamilton felt so strongly the need for having a vigorous ex- 
ecutive who could maintain a continuous policy, as to propose 
that the head of the state should be appointed for good behav- 
iour, i.e. for life, subject to removal by impeachment. The 
proposal was defeated, though it received the support of persons 
so democratically-minded as Madison and Edmund Randolph ; 
but nearly all sensible men, including many who thought better 
of democracy than Hamilton himself did, admitted that the risks 
of foreign war, risks infinitely more serious in the infancy of 
the Republic than they have subsequently proved, required the 
concentration of executive powers into a single hand. And the 
fact that in every one of their commonwealths there existed an 
officer in whom the State constitution vested executive author- 
ity, balancing him against the State legislature, made the estab- 
lishment of a Federal chief magistrate seem the obvious course. 

Assuming that there was to be such a magistrate, the states- 
men of the Convention, like the solid practical men they were, 
did not try to construct him out of their own brains, but looked 
to some existing models. They therefore made an enlarged 
copy of the State Governor, or to put the same thing differently, 
a reduced and improved copy of the English king. He is George 
III. shorn of a part of his prerogative by the intervention of the 
Senate in treaties and appointments, of another part by the 
restriction of his action to Federal affairs, while his dignity as 
well as his influence are diminished by his holding office for four 
years instead of for life. 1 His salary is too small to permit him 

1 When the Komans got rid of their king, they did not really extinguish the 
office, but set up in their consul a sort of annual king, limited not only by the 



40 THE NATIONAL GOVERNMENT part i 

either to maintain a Court or to corrupt the legislature ; nor 
can he seduce the virtue of the citizens by the gift of titles of 
nobility, for such titles are altogether forbidden. Subject to 
these precautions, he was meant by the constitution-framers 
to resemble the State governor and the British king, not only 
in being the head of the executive, but in standing apart from 
and above political parties. He was to represent the nation as 
a whole, as the governor represented the State commonwealth. 
The independence of his position, with nothing either to gain 
or to fear from Congress, would, it was hoped, set him free to 
think only of the welfare of the people. 

This idea appears in the method provided for the election 
of a President. To have left the choice of the chief magis- 
trate to a direct popular vote over the whole country would 
have raised a dangerous excitement, and would have given too 
much encouragement to candidates of merely popular gifts. 
To have entrusted it to Congress would have not only sub- 
jected the executive to the legislature in violation of the prin- 
ciple which requires these departments to be kept distinct, but 
have tended to make him the creature of one particular faction 
instead of the choice of the nation. Hence the device of a 
double election was adopted, perhaps with a faint reminiscence 
of the methods by which the Doge was then still chosen at 
Venice and the Roman Emperor in Germany. The Constitution 
directs each State to choose a number of presidential electors 
equal to the number of its representatives in both Houses of 
Congress. Some weeks later, these electors meet in each State 
on a day fixed by law, and give their votes in writing for the 
President and Vice-President. 1 The votes are transmitted, 
sealed up, to the capital and there opened by the president of 

short duration of his power, hut also by the existence of another consul with 
equal powers. So the Americans hoped to restrain their President not merely 
hy the shortness of his term, but also by daminishing the power which they 
left to him; and this they did by setting up another authority to which they 
entrusted certain executive functions, making its consent necessary to the 
validity of certain . classes of the President's executive acts. Tins is the 
Senate, whereof more anon. 

1 Originally the person who received most votes was deemed to have been 
chosen President, and the person who stood second, Vice-President. This led 
to confusion, and was accordingly altered by the twelfth constitutional amend- 
ment, adopted in 1804, which provides that the President and Vice-President 
shall be voted for separately. 



THE PEESIDENT 41 



the Senate in the presence of both Houses and counted. To 
preserve the electors from the influence of faction, it is pro- 
vided that they shall not be members of Congress, nor holders 
of any Federal office. This plan was expected to secure the 
choice by the best citizens of each State, in a tranqnil and 
deliberate way, of the man whom they in their unfettered dis- 
cretion should deem fittest to be chief magistrate of the Union. 
Being themselves chosen electors on account of their personal 
merits, they would be better qualified than the masses to select 
an able and honourable man for President. Moreover, as the 
votes are counted promiscuously, and not by States, each elec- 
tor's voice would have its weight. He might be in a minority 
in his own State, but his vote would nevertheless tell because 
it would be added to those given by electors in other States 
for the same candidate. 

No part of their scheme seems to have been regarded by the 
constitution-makers of 1787 with more complacency than this, 1 
although no part had caused them so much perplexity. No 
part has so utterly belied their expectations. The presidential 
electors have become a mere cog-wheel in the machine ; a mere 
contrivance for giving effect to the decision of the people. 
Their personal qualifications are a matter of indifference. 
They have no discretion, but are chosen under a pledge — a 
pledge of honour merely, but a pledge which has never (since 
1796) been violated — to vote for a particular candidate. In 
choosing them the people virtually choose the President, and 
thus the very thing which the men of 1787 sought to prevent 
has happened, — the President is chosen by a popular vote. 
Let us see how this has come to pass. 

In the first two presidential elections (in 1789 and 1792) the 
independence of the electors did not come into question, because 
everybody was for Washington, and parties had not yet been 
fully developed. Yet in the election of 1792 it was generally 
understood that electors of one way of thinking were to vote 
for Clinton as their second candidate (i.e. for Vice-President) 
and those of the other side for John Adams. In the third 

1 " The mode of appointment of the chief magistrate of the United States is 
almost the only part of the system which has escaped without some censure, 
or which has received the slightest mark of approbation from its opponents." 
— Federalist, No. Ixvii., cf. No. 1. and see the observations of Mr. Wilson in 
the Convention of Pennsylvania ; Elliot's Debates, vol. ii. 



42 THE NATIONAL GOVERNMENT part i 

election (1796) no pledges were exacted from electors, but the 
election contest in which they were chosen was conducted on 
party lines, and although, when the voting by the electors 
arrived, some few votes were scattered among other persons, 
there were practically only two presidential candidates before 
the country, John Adams and Thomas Jefferson, for the 
former of whom the electors of the Federalist party, for the 
latter those of the Eepublican (Democratic) 1 party were 
expected to vote. The fourth election was a regular party 
struggle, carried on in obedience to party arrangements. Both 
Federalists and Eepublicans put the names of their candidates 
for President and Vice-President before the country, and 
round these names the battle raged. The notion of leaving 
any freedom or discretion to the electors had vanished, for it 
was felt that an issue so great must and could be decided by 
the nation alone. From that day till now there has never 
been any question of reviving the true and original intent of 
the plan of double election. Even in 1876 the suggestion that 
the disputed election might be settled by leaving the electors 
free to choose, found no favor. Hence nothing has ever turned 
on the personality of the electors. They are now so little 
significant that to enable the voter to know for which set of 
electors his party desires him to vote, it is often thought well to 
put the name of the presidential candidate whose interest they 
represent at the top of the voting ticket on which their own 
names are printed. Nor need this extinction of the discretion 
of the electors be regretted, because what has happened in 
somewhat similar cases makes it certain that the electors would 
have so completely fallen under the control of the party organ- 
izations as to vote simply at the bidding of the party man- 
agers. Popular election is therefore, whatever may be its 
defects, a healthier method, for it enables the people to reject 
candidates whom the low morality of party managers would 
approve. 

The completeness and permanence of this change has been 
assured by the method which now prevails of choosing the 
electors. The Constitution leaves the method to each State, 
and in the earlier days many States entrusted the choice to 

1 The party then called Republican has for the last sixty years or so been 
called Democratic. The party now called Republican did not arise till 1854. 



chap, v THE PRESIDENT 43 

their legislatures. But as democratic principles became devel- 
oped, the practice of choosing the electors by direct popular 
vote, originally adopted by Virginia, Pennsylvania, and Mary- 
land, spread by degrees through the other States, till by 1832 
South Carolina was the only State which retained the method 
of appointment by the legislature. She dropped it in 1868, 
and popular election now rules everywhere, though any State 
may go back to the old plan if it pleases. 1 In some States the 
electors were for a time chosen by districts, like members of 
the House of Eepresentatives. But the plan of choice by a 
single popular vote over the whole of the State found increasing 
favour, seeing that it was in the interest of the party for the 
time being dominant in the State. In 1828 Maryland was the 
only State which clung to district voting. She, too, adopted 
the " general ticket " system in 1832, since which year it was 
universal until 1891, when Michigan reverted to the district 
system, the then dominant party in her legislature conceiving 
that they would thereby secure some districts, and therefore 
some electors of their own colour, although they could not carry 
the State as a whole. (This in fact happened in 1892.) Thus 
the issue comes directly before the people. The parties nomi- 
nate their respective candidates, in manner to be hereinafter 
described, 2 a tremendous "campaign" of stump speaking, news- 
paper writing, street parades, and torchlight processions sets in 
and rages for about four months : the polling for electors takes 
place early in November, on the same day over the whole Union, 
and when the result is known the contest is over, because the 
subsequent meeting and voting of the electors in their several 
States is mere matter of form. 

So far the method of choice by electors may seem to be 
merely a roundabout way of getting the judgment of the people. 
It is more than this. It has several singular consequences, 
unforeseen by the framers of the Constitution. It has made 
the election virtually an election by States, for the system 
of choosing electors by " general ticket " over the whole State 
usually causes the whole weight of a State to be thrown into the 

1 Colorado, not having time, after her admission to the Union in 1876, to 
provide hy law for a popular choice of electors to vote in the election of a 
President in the Novemher of that year, left the choice to the legislature, but 
now elects its presidential electors by popular vote like the other States. 

2 See the chapter on National Nominating Conventions in Vol. II. 



44 THE NATIONAL GOVERNMENT part i 

scale of one candidate, that candidate whose list of electors is 
carried in the given State. 1 In the election of 1884, New York 
State had thirty-six electoral votes. Each party ran its list or 
" ticket " of thirty-six presidential electors for the State, who 
were bound to vote for the party's candidate, Mr. Blaine or 
Mr. Cleveland. The Democratic list (i.e. that which included 
the thirty-six Cleveland electors) was carried by a majority of 
1100 out of a total poll exceeding 1,100,000. Thus, all the 
thirty-six electoral votes of New York were secured for Mr. 
Cleveland, and these thirty-six determined the issue of the 
struggle over the whole Union, in which nearly 10,000,000 
popular votes were cast. The hundreds of thousands of votes 
given in New York for the Blaine or Republican list did not 
go to swell the support which Mr. Blaine obtained in other 
States, but were utterly lost. Hence in a presidential election, 
the struggle concentrates itself in the doubtful States, where 
the great parties are pretty equally divided, and is languid in 
States where a distinct majority either way may be anticipated, 
because, since it makes no difference whether a minority 
be large or small, it is' not worth while to struggle hard 
to increase a minority which cannot be turned into a majority. 
And hence also a man may be, and has been, 2 elected Presi- 
dent by a minority of popular votes. 

When such has been the fate of the plan of 1787, it need 
hardly be said that the ideal President, the great and good man 
above and outside party, whom the judicious and impartial 
electors were to choose, has not been secured. The ideal was 
realized once and once only in the person of George Washing- 
ton. His successor in the chair (John Adams) was a leader 

1 A list is usually carried entire if carried at all, because it would be foolisb 
for the partisans of a candidate to vote for some only and not for all of the 
electors whose only function is to vote for him. However, the electors on a 
ticket seldom receive exactly the same number of popular votes; and thus it 
sometimes happens that when the election is close, one or two electors of the 
beaten party find their way in. In California in 1880 one out of the six electors 
in the Democratic ticket , being personally unpopular, failed t o be carried, thongh 
the other five were. Similarly in California, Ohio and Oregon in 1892 one elector 
belonging to the defeated list was chosen, and in North Dakota was presented 
the unusual spectacle of the Republican, Democratic and Populist parties each 
winning one elector. 

2 This happened in 1876, when Mr. 1 laves received, on the showing of his own 
partisans, 252,000 popular votes less than those given for Mr. Tilden; and in 
1888, when Mr. Harrison was 95,534 popular votes behind Mr. Cleveland. 

It is an odd result of the system that the bestowal of the suffrage on the 
negroes has operated against the Republican party which bestowed it. The 
Southern States received in respect of this increase in their voting population 
M additional presidential votes, and these have in the four latest elections (1880, 
1884, 1888, 1892), been all thrown for the Democratic candidate. 



chap, v THE PRESIDENT 45 

of one of the two great parties then formed, the other of which 
has, with some changes, lasted down to our own time. Jeffer- 
son, who came next, was the chief of that other party, and his 
election marked its triumph. Nearly every subsequent Presi- 
dent has been elected as a party leader by a party vote, and 
has felt bound to carry out the policy of the men who put him 
in power. 1 Thus instead of getting an Olympian President 
raised above faction, America has, despite herself, reproduced 
the English system of executive government by a party 
majority, reproduced it in a more extreme form, because in 
England the titular head of the State, in whose name adminis- 
trative acts are done, stands in isolated dignity outside party 
politics. The disadvantages of the American plan are patent ; 
but in practice they are less serious than might be expected, 
for the responsibility of a great office and the feeling that he 
represents the whole nation tend to sober and control the 
President. Except as regards patronage, he has seldom acted 
as a mere tool of faction, or sought to abuse his administrative 
powers to the injury of his political adversaries. 

The Constitution prescribes no limit for the re -eligibility of 
the President. He may go on being chosen for one four 
year period after another for the term of his natural life. 
But tradition has supplied the place of law. Elected in 1789, 
Washington submitted to be re-elected in 1792. But when he 
had served this second term he absolutely refused to serve a 
third, urging the risk to republican institutions of suffering the 
same man to continue constantly in office. Jefferson, Madison, 
Monroe, and Jackson obeyed the precedent, and did not seek, 
nor their friends for them, re-election after two terms. After 
them no President was re-elected, except Lincoln, down to 
General Grant. Grant was President from 1869 to 1873, and 
again from 1873 to 1877, then came Mr. Hayes ; and in 1880 
an attempt was made to break the unwritten rule in Grant's 
favour. Each party, as will be more fully explained hereafter, 
nominates its candidates in a gigantic party assembly called 
the National Convention. In the Eepublican party Conven- 

1 James Monroe was chosen President in 1820 with practical unanimity ; 
but this was because one of the two parties had for the time been crushed out 
and started no candidate. So also J. Q. Adams, Monroe's successor, can hardly 
be called a party leader. After him the party-chosen Presidents go on with- 
out interruption. 



46 THE NATIONAL GOVERNMENT part i 

tion of 1880 a powerful group of the delegates put forward 
Grant for nomination as the party candidate, alleging his special 
services as a ground for giving him the honour of a third term. 
Had there not been among the Kepublicans themselves a sec- 
tion personally hostile to Grant, or rather to those who 
surrounded him, the attempt might have succeeded, though it 
would probably have involved defeat at the polls. But this 
hostile section found the prepossession of the people against a 
third term so strong that, by appealing to the established tradi- 
tion, they defeated the Grant men in the Convention, and 
obtained the nomination of Mr. Garfield, who was victorious at 
the ensuing election. This precedent has been taken as prac- 
tically decisive for the future, because General Grant, though 
his administration had been marked by grave faults, was an 
exceptionally popular figure. A principle affirmed against him 
is not likely to be departed from in favour of any aspirant for 
many elections to come. 

The Constitution (Amendment xii., which in this point 
repeats the original Art. xi. § 1) requires for the choice of 
a President "a majority of the whole number of electors 
appointed." If no such majority is obtained by any candi- 
date, i.e. if the votes of the electors are so scattered among 
different candidates, that out of the total number (which 
in 1888 was 401, and is now under the Apportionment Act 
of 1891, 444) no one receives an absolute majority (i.e. 
at least 223 votes), the choice goes over to the House of 
Eepresentatives, who are empowered to choose a President 
from among the three candidates who have received the largest 
number of electoral votes. In the House the vote is taken by 
States, a majority of all the States (i.e. at present of twenty- 
three States out of forty-four) being necessary for a choice. 
As all the members of the House from a State have but one 
collective vote, it follows that if they are equally divided 
among themselves, the vote of that State is lost. Supposing 
this to be the case in half the total number of States, or 
supposing the States so to scatter their votes that no candidate 
receives an absolute majority, then no President is chosen, 
and the Vice-President becomes President. 

Only twice has the election gone to the House. In 1800, 
when the rule still prevailed that the candidate with the 



THE PRESIDENT 47 



largest number of votes became President, and the candidate 
who came second Vice-President, Jefferson and Aaron Burr 
received the same number. The Jeffersonian electors meant 
to make him President, but as they had also all voted for Burr, 
there was a tie. After a long struggle the House chose 
Jefferson. Feeling ran high, and had Jefferson been kept out 
by the votes of the Federalist party, who hated him more than 
Burr, his partisans might possibly have taken up arms. 1 In 
1824 Andrew Jackson had 99 electoral votes, and his three 
competitors (J. Q. Adams, Crawford, and Clay) 162 votes 
between them. The House chose J. Q. Adams by a vote of 
thirteen States against seven for Jackson and four for Craw- 
ford. 2 In this mode of choice, the popular will may be still 
less recognized than it is by the method of voting through 
presidential electors, for if the twenty-three smaller States were 
through their representatives in the House to vote for candi- 
date A, and the twenty-one larger States for candidate B, A 
would be seated, though the population of the former set of 
States is, of course, very much below that of the latter. 

The Constitution seems, though its language is not explicit, 
to have intended to leave the counting of the votes to the 
president of the Senate (the Vice-President of the United 
States) ; and in early days this officer superintended the count, 
and decided questions as to the admissibility of doubtful 
votes. However, Congress has in. virtue of its right to be 
present at the counting assumed the further right of deter- 
mining all questions which arise regarding the validity of 
electoral votes, and has, it need hardly be said, determined 
them on each occasion from party motives. This would be 
all very well were a decision by Congress always certain of 
attainment. But it often happens that one party has a major- 
ity in the Senate, another party in the House, and then, as 
the two Houses vote separately and each differently from the 

1 The votes of two States were for a long time divided ; but Hamilton's 
influence at last induced the Federalist members to vote for Jefferson as a 
person less dangerous to the country than Burr. His action — highly patriotic, 
for Jefferson was his bitter enemy — cost him his life at Burr's hands. 

2 Clay, unlucky throughout in his ambitions for the presidency, had stood 
fourth in the electoral vote, and so could not be chosen by the House. Jack- 
son had received the largest popular vote in those States where electors were 
chosen by the people. 



48 THE NATIONAL GOVERNMENT i art i 

other, a deadlock results. I must pass by the minute and often 
tedious controversies which have arisen on these matters. But 
one case deserves special mention, for it illustrates an ingrained 
and formidable weakness of the present electoral system. 

In 1876, Mr. Hayes was the Eepublican candidate for the 
presidency, Mr. Tilden the Democratic. The former carried 
his list of electors in seventeen States, whose aggregate electors 
numbered 163, and the latter carried his list also in seventeen 
States, whose aggregate electors numbered 184. (As the total 
number of electors was then 369, 184 was within one of being 
a half of that number.) Four States remained out of the total 
thirty-eight, and in each of these four two sets of persons had 
been chosen by popular vote, each set claiming, on grounds 
too complicated to be here explained, to be the duly chosen 
electors from those States respectively. 1 The electoral votes 
of these four States amounted to twenty-two, so that if in any 
one of them the Democratic set of electors had been found to 
have been duly chosen, the Democrats would have secured a 
majority of electoral votes, whereas even if in all of them 
Eepublican electors had been chosen, the Eepublican electors 
would have had a majority of one only. In such circumstances 
the only course for the Eepublican leaders, as good party men, 
was to claim all these doubtful States. This they promptly 
did, — party loyalty is the last virtue that deserts politicians, 
— and the Democrats did the like. 

Meanwhile the electors met and voted in their respective 
States. In the four disputed States the two sets of electors 
met, voted, and sent up to Washington, from each of these 
four, double returns of the electoral votes. The result of the 
election evidently depended on the question which set of 
returns should be admitted as being the true and legal returns 
from the four States respectively. The excitement over the 
whole Union was intense, and the prospect of a peaceful set- 
tlement remote, for the Constitution appeared to provide no 
means of determining the legal questions involved. Congress, 

1 In Oregon the question was whether one of the chosen electors was dis- 
qualified because lie was a post master. In Florida there were complaints of 
fraud, in South Carolina of intimidation, in Louisiana two rival State govern- 
ments existed, eaeh claiming the right to certify electoral returns. There had 
doubtless been a good deal of fraud and some violence in several of the South- 
ern States. 



THE PRESIDENT 49 



as remarked above, had in some previous instances assumed 
jurisdiction, but seeing that the Eepublicans had a majority in 
the Senate, and the Democrats in the House of Eepresenta- 
tives, it was clear that the majority in one House would vote 
for admitting the Eepublican returns, the majority in the other 
for admitting the Democratic. Negotiations between the lead- 
ers at last arranged a method of escape. A statute was passed 
creating an electoral commission of five Senators, five members 
of the House of Eepresentatives, and five Justices of the 
Supreme Court, who were to determine all questions as to the 
admissibility of electoral votes from States sending up double 
returns. 1 Everything now turned on the composition of the 
electoral Commission, a body such as had never before been 
created. The Senate appointed three Eepublicans and two 
Democrats. The House of Eepresentatives appointed three 
Democrats and two Eepublicans. So far there was an exact 
balance. The statute had indicated four of the Justices who 
were to sit, two Eepublicans and two Democrats, and had left 
these four to choose a fifth. This fifth was the odd man 
whose casting vote would turn the scale. The four Justices 
chose a Eepublican Justice, and this choice practically settled 
the result, for every vote given by the members of the Com- 
mission was a strict party vote. 2 They were nearly all law- 
yers, and had all taken an oath of impartiality. The legal 
questions were so difficult, and for the most part so novel, that 
it was possible for a sound lawyer and honest man to take in 
each case either the view for which the Eepublicans or that 
for which the Democrats contended. Still it is interesting to 
observe that the legal judgment of every commissioner hap- 
pened to coincide with his party proclivities. 3 All the points 
in dispute were settled by a vote of eight to seven in favour 

1 Power was reserved to Congress to set aside by a vote of both Houses the 
decisions of the Commission, but as the two Houses differed in every case, 
the Democrats of the House always voting against each determination of the 
Commission, and the Republicans of the Senate supporting it, this provision 
made no difference. 

2 The Commission decided unanimously that the Democratic set of electors 
from South Carolina were not duly chosen, but they divided eight to seven as 
usual on the question of recognizing the Republican electors of that State. 

3 The same phenomenon has been observed/in committees of the English 
House of Commons appointed to deal with purely legal questions, or to sit in 
a virtually judicial capacity. 

VOL. I E 



50 THE NATIONAL GOVERNMENT part i 

of the returns transmitted by the Republican electors in the 
four disputed States, and Mr. Hayes was accordingly declared 
duly elected by a majority of 185 electoral votes against 184. 
The decision may have been right as matter of law — it is 
still debated by lawyers, — and there had been so much force 
and fraud on both sides in Florida, Louisiana, and South Caro- 
lina, that no one can say on which side substantial justice lay. 
Mr. Tilden deserves the credit of having induced his friends 
both to agree to a compromise slightly to his own disadvan- 
tage, and to accept peaceably, though with loud and long com- 
plaints, a result which baffled their hopes. I tell the story 
here because it points to a grave danger in the presidential 
system. The stake played for is so high that the temptation 
to fraud is immense ; and as the ballots given for the electors 
by the people are received and counted by State authorities 
under State laws, an unscrupulous State faction has opportuni- 
ties for fraud at its command. In 1887 Congress, having had the 
subject pressed on its attention by successive Presidents, took 
steps to provide against a recurrence of the danger described. 
It passed a statute enacting that tribunals appointed in and by 
each State shall determine what electoral votes from the State 
are legal votes ; and that if the State has appointed no such 
tribunal, the two Houses of Congress shall determine which 
votes (in case of double returns) are legal. If the Houses 
differ the vote of the State is lost. It is, of course, possible 
under this plan that the State tribunal may decide unfairly ; 
but the main thing is to secure some decision. Unfairness is 
better than uncertainty. 

A President is removable during his term of office only by 
means of impeachment, a procedure familiar on both sides of 
the Atlantic in 1787, when the famous trial of Warren Hast- 
ings was still lingering on at Westminster. Impeachment, 
which had played no small part in the development of English 
liberties, was deemed by the Americans of those days a valuable 
element in their new constitution, for it enabled Congress to 
depose, and the fear of it might be expected to restrain, a trea- 
sonably ambitious President. In obedience to >State precedents, 1 

1 Impeachment was taken, not directly from English usage, but rather from 
the Constitutions of Virginia (1776), ami Massachusetts (1780), which had, no 
doubt following the example of England, established this remedy against cul- 
pable officials. 



THE PRESIDENT 51 



it is by the House of Representatives that the President is 
impeached, and by the Senate, sitting as a law court, with 
the chief justice of the Supreme court, the highest legal 
official of the country, as presiding officer, that he is tried. A 
two-thirds vote is necessary to conviction, the effect of which 
is simply to remove him from and disqualify him for office, 
leaving him "liable to indictment, trial, judgment, and punish- 
ment, according to law" (Constitution, Art. i. § 3, Art. ii. § 4). 
The impeachable offences are " treason, bribery, or other high 
crimes and misdemeanours," an expression which some have 
held to cover only indictable offences, while others extend it 
to include acts done in violation of official duty and against 
the interests of the nation, such acts, in fact, as were often 
grounds for the English impeachments of the seventeenth cen- 
tury. As yet, Andrew Johnson is the only President who has 
been impeached. His foolish and headstrong conduct made 
his removal desirable, but as it was doubtful whether any 
single offence justified a conviction, several of the senators 
politically opposed to him voted for acquittal. 1 A two-thirds 
majority not having been secured upon any one article (the 
numbers being thirty-five for conviction, nineteen for acquit- 
tal) he was declared acquitted. 

In case of the removal of a President by impeachment, or of 
his death, resignation, or inability to discharge his duties, the 
Vice-President steps into his place. The Vice-President is 
chosen at the same time, by the same electors, and in the same 
manner as the President. His only functions are to preside 
in the Senate and to succeed the President. Failing both 
President and Vice-President it was formerly provided by stat- 
ute, not by the Constitution, that the presiding officer for the 
time being of the Senate should succeed to the presidency, 
and, failing him, the Speaker of the House of Representatives. 
To this plan there was the obvious objection that it might 
throw power into the hands of the party opposed to that to 
which the lately deceased President belonged ; and it has there- 
fore been now (by an Act of 1886) enacted that on the death 
of a President (including a Vice-President who has succeeded 

1 They may have doubted the expediency of displacing him at that moment ; 
or their political prepossessions against him may have been restrained by a 
doubt whether the evidence was sufficient to support a quasi-criminal charge. 



62 THE NATIONAL GOVERNMENT part i 

to the Presidency) the secretary of state shall succeed, and 
after him other officers of the Administration, in the order of 
their rank. Four Presidents (Harrison, Taylor, Lincoln, Gar- 
field) have died in office, and been succeeded by Vice-Presidents, 
and in the first and third of these instances the succeeding Vice- 
President has reversed the policy of his predecessor, and be- 
come involved in a quarrel with the party which elected him, 
such as has never yet broken out between a man elected to be 
President and his party. In practice very little pains are 
bestowed on the election of a Vice-President. The convention 
which selects the party candidates usually gives the nomina- 
tion to this post to a man in the second rauk, sometimes as a 
consolation to a disappointed candidate for the presidential 
nomination, sometimes to a friend of such a disappointed can- 
didate in order to " placate " his faction, sometimes as a com- 
pliment to an elderly leader who is personally popular. If 
the party carries its candidate for President, it also as a mat- 
ter of course carries its candidate for Vice-President, and thus 
if the President happens to die, a man of small account may 
step into the chief magistracy of the nation. 



CHAPTER VI 

PRESIDENTIAL POWERS AND DUTIES 

The powers and duties of the President as head of the Federal 
executive are the following : — 

Command of Federal army and navy and of militia of several 

States when called into service of the United States. 
Power to make treaties, but with advice and consent of the 
Senate, i.e. consent of two-thirds of senators present. 
" to appoint ambassadors and consuls, judges of Supreme 
court, and all other higher Federal officers, but with 
advice and consent of Senate. 
" to grant reprieves and pardons for offences against the 

United States, except in cases of impeachment. 
" to convene both Houses on extraordinary occasions. 
" to disagree with (i.e. to send back for re-consideration) 
any bill or resolution passed by Congress, but subject to 
the power of Congress to finally pass the same, after re- 
consideration, by a two-thirds majority in each House. 
Duty to inform Congress of the state of the Union, and to 
recommend measures to Congress. 
" to commission all the officers of the United States. 
" to receive foreign ambassadors. 
" to take care that the laws be faithfully executed. 
These functions group themselves into four classes — 
Those which relate to foreign affairs. 
Those which relate to domestic administration. 
Those which concern legislation. 
The power of appointment. 
The conduct of foreign policy would be a function of the 
utmost importance did not America, happy America, stand 
apart in a world of her own, unassailable by European powers, 
easily superior to the other republics of her continent, but with 

53 



54 THE NATIONAL GOVERNMENT part i 

no present motive for aggression upon them. The President, 
however, has not a free hand in foreign policy. / He cannot 
declare war, for that belongs to Congress, though to be sure he 
may, as President Polk did in 1845-6, bring affairs to a point 
at which it is hard for Congress to refrain from the declaration. 
Treaties require the approval of two-thirds of the Senate ; and 
in order to secure this, it is usually necessary for the Executive 
to be in constant communication with the Foreign Affairs Com- 
mittee of that body. The House of Eepresentatives has no 
legal right to interfere, but it often passes resolutions enjoin- 
ing or disapproving a particular line of policy ; and sometimes 
invites the Senate to coincide in these expressions of opinion, 
which then become weightier. The President is nowise bound 
by such resolutions, and has more than once declared that he 
does not regard them. But as some treaties, especially com- 
mercial treaties, cannot be carried out except by the aid of 
statutes, and as no war can be entered on without votes of 
money, the House of Eepresentatives can sometimes indirectly 
make good its claim to influence. Many delicate questions, 
some of them not yet decided, have arisen upon these points, 
which the Constitution has, perhaps unavoidably, left in half- 
light. In all free countries it is most difficult to define the 
respective spheres of the legislature and executive in foreign 
affairs, for while publicity and parliamentary control are needed 
to protect the people, promptitude and secrecy are the condi- 
tions of diplomatic success. Practically, however, and for the 
purposes of ordinary business, the President is independent of 
the House, while the Senate, though it can prevent his settling 
anything, cannot keep him from unsettling everything. He, 
or rather his secretary of stale, lor the President lias rarely 
leisure to give close or continuous attention to foreign policy, 
retains an unfettered initiative, by means of which he may 
embroil the country abroad or excite passion at home. 

The domestic authority of the 1 'resident is in time of peace 
small, because by far the larger part of law and administration 
belongs to the State governments, and because Federal admin- 
istration is regulated by statutes which leave little discretion to 
the executive. In war time, however, and especially in a civil 
war, it expands with portentous speed. Both as commander-in- 
chief of the army ami navy, and as charged with the "faithful 



chap, vi PRESIDENTIAL POWERS AND DUTIES 55 

execution of the laws/' the President is likely to be led to 
assume all the powers which the emergency requires. How 
much he can legally do without the aid of statutes is disputed, 
for the acts of President Lincoln during the earlier part of the 
War of Secession, including his proclamation suspending the 
writ of Habeas Corpus, were subsequently legalized by Con- 
gress ; but it is at least clear that Congress can make him, as 
it did make Lincoln, almost a dictator. And how much the 
war power may include appears in this, that by virtue of it 
and without any previous legislative sanction President Lincoln 
issued his emancipation proclamations of 1862 and 1863, declar- 
ing all slaves in the insurgent States to be thenceforth free, 
although these States were deemed to be in point of law still 
members of the Union. 1 • 

It devolves on the executive as well as on Congress to give 
effect to the provisions of the Constitution whereby a republi- 
can form of government is guaranteed to every State : and a 
State may, on the application of its legislature, or executive 
(when the legislature cannot be convened), obtain protection 
against domestic violence. Where, as in Louisiana in 1873, 
there are two governments disputing by force the control of a 
State, or where an insurrection breaks out, as in Ehode Island 
in 1840-2, this power becomes an important one, for it involves 
the employment of troops, and enables the President (since it 
is usually on him that the duty falls) to establish the govern- 
ment he prefers to recognize. 2 Fortunately the case has been 
of rare occurrence. 

1 The proclamation was expressed not to apply to States which had not 
seceded, nor to such parts of seceding States as had then already been recon- 
quered by the northern armies. Slavery was finally legally extinguished 
everywhere by the thirteenth constitutional amendment of 1865. 

2 In the Louisiana case Federal troops were employed : in the Rhode Island 
case the President authorized the employment of the militia of Massachusetts 
and Connecticut, but the Rhode Island troops succeeded in suppressing the 
rebellion, whose leader was ultimately convicted of high treason against the 
State and imprisoned. See as to the guarantee of order and republican gov- 
ernment in the States, the case of Luther v. Borden (7 How. 42) and the 
instructive article" of Judge T. M. Cooley in the International Review for 
January 1875. He observes : " The obligation to guarantee a republican form 
of government to the States, and to protect them against invasion and domes- 
tic violence, is one imposed upon ' the United States.' The implication is that 
the duty was not to depend for its fulfilment on the legislative depai'tment 
exclusively, but that all departments of the government, or at least more than 



56 THE NATIONAL GOVERNMENT part i 

The President has the right of speaking to the nation by 
addresses or proclamations, a right not expressly conferred 
by the Constitution, but inherent in his position. Occasions 
requiring its exercise are uncommon. On entering office, it is 
usual for the new magistrate to issue an inaugural address, 
stating his views on current public questions. Washington 
also put forth a farewell address, but Jackson's imitation of 
that famous document was condemned as a piece of vain-glory. 
It is thought bad taste for the President to deliver stump 
speeches, and AndreAv Johnson injured himself by the prac- 
tice. But he retains that and all other rights of the ordinary 
citizen, including the right of voting at Federal as well as 
State elections in his own State. And he has sometimes taken 
an active, though a covert, share in the councils of his own 
party. 

The position of the President as respects legislation is a 
peculiar one. The King of England is a member of the Eng- 
lish legislature, because Parliament is in theory his Great 
Council which he summons and in which he presides, hearing 
the complaints of the people, and devising legislative reme- 
dies. 1 It is as a member of the legislature that he assents to 
the bills it presents to him, and the term " veto power," since 
it suggests an authority standing outside to approve or reject, 
does not happily describe his right of dealing with a measure 
which has been passed by the council over which he is deemed 
to preside, though he now no longer appears in it except at the 
beginning and ending of a session. The American President 
is not a member of either House of Congress. He is a sepa- 
rate authority whom the people, for the sake of protecting 
themselves against abuses of legislative power, have associated 

one, were or might be charged with some duty in this regard. It has been 
Congress which hitherto has assumed to act upon the guarantee, while appli- 
cation for protection against domestic violence has, on the other hand, been 
made to the President. From the nature of the case the judiciary can have 
little or nothing to do with questions arising under this provision of the 
Constitution." 

1 It need hardly be said that the actual separation of Parliament into two 
branches, each of which deliberates apart under the presidency of its own 
chairman (the chairman of one House named by the sovereign, whom he 

represents, thai of the other chosen by the House, hut approved by the sover- 
eign), does not exclude the theory that the King Lords and Commons consti- 
tute the common council of the nation. 



chap, vi PRESIDENTIAL POWERS AND DUTIES 57 

with the legislature for the special purpose of arresting its 
action by his disapproval. 1 So again the King of England can 
initiate legislation. According to the older Constitution, stat- 
utes purported to be made, and were till the middle of the 
fifteenth century actually made, by him, but " with the advice 
and consent of the Lords Spiritual and Temporal and of the 
Commons." 2 According to modern practice, nearly all impor- 
tant measures are brought into Parliament by his ministers, 
and nominally under his instructions. The American Presi- 
dent cannot introduce bills, either directly or through his min- 
isters, for they do not sit in Congress. 3 All that the Constitu- 
tion permits him to do in this direction is to inform Congress 
of the state of the nation, and to recommend the measures 
which his experience in administration shows to be necessary. 
This latter function is discharged by the messages which the 
President addresses to Congress. The most important is that 
sent at the beginning of each session. 

George Washington used to deliver his addresses orally, like 
an English king, and drove in a coach and six to open Congress 
with something of an English king's state. But Jefferson, when 
his turn came in 1801, whether from republican simplicity, as 
he said himself, or because he was a poor speaker, as his critics 
said, began the practice of sending communications in writing ; 

1 The term " veto " was not used in the Convention of 1787 : men talked of 
the President's " qualified negative." 

2 In the fourteenth century English statutes are expressed to be made by 
the king, " par conseil et par assentement " of the lords and the commonalty. 
The words " by the authority " of the Lords and Commons first appear in the 
eleventh year of Henry VI. (1433), and from the first of Henry VII. (1485) 
downwards a form substantially the same as the present is followed, viz. "Be 
it enacted by the Queen's most excellent Majesty, by and with the advice and 
consent of the Lords Spiritual and Temporal, and Commons, and by the 
authority of the same." 

3 Nevertheless, the Congressional Globe for July 14, 1862, records that 
" The President {pro tempore) of the Senate presented the following message 
from the President of the United States : ' Fellow Citizens of the Senate and 
the House of Representatives: Herewith is the draft of a bill to compensate 
any State which may abolish slavery within its limits, the passage of which, 
substantially as presented, I respectfully and earnestly recommend. Abraham 
Lincoln.'" The bill was thereupon read a second time, and a debate arose 
as to whether the President had a right to submit bills. In the House the 
message as a whole was referred to the Special Committee on Emancipation. 
This seems to be the only instance in which a President has submitted a draft 
bill. 



58 THE NATIONAL GOVERNMENT part i 

and this has been followed ever since. The message usually 
discusses the leading questions of the moment, indicates mis- 
chiefs needing a remedy, and suggests the requisite legislation. 
But as no bills are submitted by the President, and as, even 
were he to submit them, no one of his ministers sits in either 
House to explain and defend them, the message is a shot in the 
air without practical result. It is rather a manifesto, or decla- 
ration of opinion and policy, than a step towards legislation. 
Congress is not moved : members go their own ways and bring 
in their own bills. 

Far more effective is the President's part in the last stage of 
legislation, for here he finds means provided for carrying out 
his will. When a bill is presented to him, he may sign it, and 
therewith make it law. If, however, he disapproves of it, he re- 
turns it within ten days to the House in which it originated, 
with a statement of his grounds of disapproval. If both Houses 
take up the bill again and pass it by a two-thirds majority in 
each House, it becomes law forthwith without requiring the 
President's signature. 1 If it fails to obtain this majority it 
drops. 

Considering that the arbitrary use, by George III. and his 
colonial governors, of the power of refusing bills passed by a 
colonial legislature had been a chief cause of the Revolution of 
1776, it is to the credit of the Americans that they inserted 
this apparently undemocratic provision (which, however, ex- 
isted in the Constitution of Massachusetts of 1780) in the Con- 
stitution of 1789. 2 It has worked wonderfully well. Most 
Presidents have employed it sparingly, and only where they 
felt either that there was a case for delay, or that the country 
would support them against the majority in Congress. Per- 
verse or headstrong Presidents have been generally defeated 
by the use of the two-thirds vote to pass the bill over their 
objections. Washington •• returned " or vetoed two bills only; 
his successors down till 1830, seven. Jackson made a bolder 
use of his power — a use which liis opponents denounced as 
opposed to the spirit, of the Constitution : vet until the accession 

1 If Congress adjourns within the ten days allowed the President for return- 
ing the kill it is lost. His retaining it under these circumstances at tin- end 
of a session is popularly called a " pocket veto." 

3 The New York State Constitution «>t' 1777 gave a veto to the Governor and 
Judges of the highest Court acting together, 



PRESIDENTIAL POWERS AND DUTIES 59 



of President Cleveland in 1885 the total number vetoed was 
only 132 (including the so-called pocket vetoes) in ninety- 
six years. 1 Mr. Cleveland vetoed 301, the great majority 
being bills for granting* pensions to persons who served in 
the northern armies during the War of Secession. 2 Though 
many of these bills had been passed with little or no opposi- 
tion, two only were repassed over his veto. The only Presi- 
dent who acted recklessly was Andrew Johnson. In the 
course of his three years' struggle with Congress, he returned 
the chief bills passed for carrying out their Keconstruction 
policy, but as the majority opposed to him was large in both 
Houses, these bills were promptly passed over his veto. 

So far from exciting the displeasure of the people by resist- 
ing the will of their representatives, a President generally 
gains popularity by the bold use of his veto power. It con- 
veys the impression of firmness ; it shows that he has a view 
and does not fear to give effect to it. The nation, which has 
often good grounds for distrusting Congress, a body liable to 
be moved by sinister private influences, or to defer to the 
clamour of some noisy section outside, looks to the man of its 
choice to keep Congress in order, and has approved the exten- 
sion which practice has given to the power. The President's 
"qualified negative" was proposed by the Convention of 1787 
for the sake of protecting the Constitution, and in particu- 
lar, the executive, from Congressional encroachments. It has 
now come to be used on grounds of general expediency, to 
defeat any measure which the Executive deems pernicious 
either in principle or in its probable results. 

1 Of these 132 (some reckon 128), 21 emanated from Johnson and 43 from 
Grant, while John Adams, Jefferson, J. Q. Adams, Van Buren, Taylor, and 
Fillmore sent no veto messages at all. (W. H. Harrison and Garfield died 
hefore they had any opportunity.) Among the most important vetoes were 
those of several reconstruction hills hy Johnson (these were re-passed hy two- 
thirds votes) , that of a paper currency measure, the so-called Inflation Bill, 
by Grant, and that of the Dependent Pension Bill hy Cleveland. No hill was 
passed " over a veto " until 1845. Presidents have occasionally (e.g. Lincoln 
more than once) in signing a bill stated objections to it which Congress has 
thereupon obviated by supplementary legislation. 

2 Out of these 433 vetoed bills only 29 were passed over the veto, 15 of these 
in the time of Johnson. 

The numbers are differently reckoned by different authorities. I have here 
followed the calculation of Mr. E. C. Mason, in his clear and useful essay in 
Harvard Historical Monographs, Boston, 1891. 



60 THE NATIONAL GOVERNMENT part i 

The reasons why the veto provisions of the Constitution 
have succeeded appear to be two. One is that the President, 
being an elective and not a hereditary magistrate, is responsible 
to the people, and has the weight of the people behind hiin. 
The people regard him as an indispensable check, not only 
upon the haste and heedlessness of their representatives, the 
faults which the framers of the Constitution chiefly feared, but 
upon their tendency, a tendency whose mischievous force ex- 
perience has revealed, to yield either to pressure from any 
section of their constituents, or to temptations of a private 
nature. The other reason is that a veto need never take effect 
unless there is a minority exceeding one-third in one or other 
House of Congress, which agrees with the President. Such a 
minority shares his responsibility and encourages him to resist 
the threats of a majority : while if he has no substantial sup- 
port in public opinion, his opposition is easily overborne. 
Hence this arrangement is preferable to a plan, such as that of 
the French Constitution of 1791 1 (under which the king's veto 
could be overridden by passing a bill in three successive 
years), for enabling the executive simply to delay the passing 
of a measure which may be urgent, or which a vast majority 
of the legislature may desire. In its practical working the 
presidential veto power furnishes an interesting illustration of 
the tendency of unwritten or flexible constitutions to depart 
from, of written or rigid constitutions to cleave to, the letter 
of the law. The strict legal theory of the rights of the head 
of the state is in this point exactly the same in England and 
in America. But whereas it is now the undoubted duty of an 
English king to assent to every bill passed by both Houses of 
Parliament, however strongly he may personally disapprove 
its provisions, 2 it is the no less undoubted duty of an American 

1 As the majority in France was unable to attain its will by constitutional 
means without waiting three years, it was Die more disposed to overthrow the 
Constitution. 

2 Queen Elizabeth, in a.i>. 1597, assented to forty-three bills passed in that 
session, and " advised herself" upon forty-eight. William III. refused his 
assent to five bills. The last instance of the use oi the "veto power" in Eng- 
land was by Queen Anne in 1707 on a Scotch militia bill. Mr. Todd (Parh'a- 
mentary Government in the English Colonies, ii. p. 319) mentions that in 

1S5S changes in a private railway bill were compelled by an intimation to its 
promoters that, if they were not made, the royal power of rejection would be 

exercised. 



chap, vi PRESIDENTIAL POWERS AND DUTIES 61 

President to exercise his independent judgment on every bill, 
not sheltering himself nnder the representatives of the people, 
or foregoing his own opinion at their bidding. 1 

As the President is charged with the whole Federal adminis- 
tration, and responsible for its due conduct, he must of course 
be allowed to choose his executive subordinates. But as he 
may abuse this tremendous power the Constitution associates 
the Senate with him, requiring the " advice and consent " of 
that body to the appointments he makes. 2 This confirming 
power has become a political factor of the highest moment. 
The framers of the Constitution probably meant nothing more 
than that the Senate should check the President by rejecting 
nominees who were personally unfit for the post to which he 
proposed to appoint them. The Senate has always, except in 
its struggle with President Johnson, left the President free to 
choose his cabinet ministers. But it early assumed the right 
of rejecting a nominee to any other office on any ground which 
it pleased, as for instance, if it disapproved his political affilia- 
tions, or wished to spite the President. Presently the senators 
from the State wherein a Federal office to which the President 
had made a nomination lay, being the persons chiefly interested 
in the appointment, and most entitled to be listened to by the 
rest of the Senate when considering it, claimed to have a para- 

1 The practical disuse of the " veto power " in England is due not merely to 
the decline in the authority of the Crown, hut to the fact that, since the Revo- 
lution, the Crown acts only on the advice of responsible ministers, who neces- 
sarily command a majority in the House of Commons. A bill therefore cannot 
he passed against the wishes of the ministry unless in the rare case of their 
being ministers on sufferance, and even in that event they would be able to 
prevent its passing by advising the Crown to prorogue or dissolve Parliament 
before it had gone through all its stages. In 1868 a bill (the Irish Church Sus- 
pension Bill) was carried through the House of Commons by Mr. Gladstone 
against the opposition of the then Tory ministry which was holding office on 
sufferance ; but it was rejected on second reading by a large majority in the 
House of Lords. Had that House seemed likely to accept it the case would 
have arisen which I have referred to, and the only course for the ministry 
would have been to dissolve Parliament. 

It was urged against the provision in the Constitution of 1789 for the Presi- 
dent's veto that the power would be useless, because in England the Crown 
did not venture to use it. Wilson replied by observing that the English Crown 
had not only practically an antecedent negative, but also a means of defeating 
a bill in the House of Lords by creating new peers. — Elliot's Debates, ii. 
p. 472. 

2 Congress is however permitted to vest in the President alone the appoint- 
ment to such " inferior offices " as it thinks fit. 



62 THE NATIONAL GOVERNMENT cart i 

mount voice in deciding whether the nomination should be con- 
firmed. Their colleagues approving, they then proceeded to 
put pressure on the President. They insisted that before mak- 
ing a nomination to an office in any State he should consult the 
senators from that State who belonged to his own party, and 
be guided by their wishes. Such an arrangement benefited all 
senators alike, because each obtained the right of practically 
dictating the appointments to those Federal offices which he 
most cared for, viz. those within his own State ; and each was 
therefore willing to support his colleagues in securing the same 
right for themselves as regarded their States respectively. Of 
course when a senator belonged to the party opposed to the 
President, he had no claim to interfere, because places are as a 
matter of course given to party adherents only. When both 
senators belonged to the President's party they agreed among 
themselves as to the person whom they should require the 
President to nominate. By this system, which obtained the 
■name of the Courtesy of the Senate, the President was practi- 
cally enslaved as regards appointments, because his refusal to 
be guided by the senator or senators within whose State the 
office lay exposed him to have his nomination rejected. The 
senators, on the other hand, obtained a mass of patronage by 
means of which they could reward their partisans, control the 
Federal civil servants of their State, and build up a faction 
devoted to their interests. 1 Successive Presidents chafed under 
the yoke, and sometimes carried their nominees either by mak- 
ing a bargain or by fighting hard with the senators who sought 
to dictate to them. But it was generally more prudent to 
yield, for an offended senator could avenge a defeat by playing 
the President a shrewd trick in some other matter: and as the 
business of confirmation is transacted in secret session, in- 
triguers have little fear of the public before their eves. The 
senators might, moreover, argue that they knew best what 
would strengthen the party in their State, and that the men of 
their choice were just as likely to be good as those whom some 
private friend suggested to the President. Tims the system 

1 As the House <>f Representatives could not allow the Senate to engross all 
the Federal patronage, there has been a tendency towards a sort of arrange- 
ment, according to which the greater state offices belong to the senators, while 
as regards the lesser ones, lying within their respective Congressional districts, 
members of the House are recognized as entitled to recommend candidates. 



chap, vi PRESIDENTIAL POWERS AND DUTIES 63 

throve and still thrives, though it received a blow from the 
conflict in 1881 between President Garfield and one of the New 
York senators, Mr. Eoscoe Conkling. This gentleman, finding 
that Mr. Garfield would not nominate to a Federal office in that 
State the person he proposed, resigned his seat in the Senate, 
inducing his co-senator Mr. Piatt to do the same. Both then 
offered themselves for re-election by the State legislature of 
New York, expecting to obtain from it an approval of their 
action, and thereby to cow the President. The State legisla- 
ture, however, in which a faction hostile to the two senators 
had become powerful, rejected Mr. Conkling and Mr. Piatt in 
favour of other candidates. So the victory remained with Mr. 
Garfield, while the nation, which had watched the contest 
eagerly, rubbed its hands in glee at the unexpected denouement. 

It need hardly be added that the " Courtesy of the Senate " 
would never have attained its present strength but for the 
growth in and since the time of President Jackson, of the so- 
called Spoils System, whereby holders of Federal offices have 
been turned out at the accession of a new President to make 
way for the aspirants whose services, past or future, he is 
expected to requite or secure by the gift of places. 1 

The right of the President to remove from office has given 
rise to long controversies on which I can only touch. In the 
Constitution there is not a word about removals ; and very 
soon after it had come into force the question arose whether, 
as regards those offices for which the confirmation of the 
Senate is required, the President could remove without its 
consent. Hamilton had argued in the Federalist (though there 
is reason to believe that he afterwards changed his opinion) 
that the President could not so remove, because it was not 
to be supposed that the Constitution meant to give him so 
immense and dangerous a reach of power. Madison argued 
soon after the adoption of the Constitution that it did permit 
him so to remove, because the head of the executive must have 
subordinates whom he can trust, and may discover in those 
whom he has appointed defects fatal to their usefulness. This 
was also the view of Chief-Justice Marshall. When the 
question came to be settled in the Senate during the presi- 
dency of Washington, Congress, influenced perhaps by respect 

1 See Chapter LXV. on the Spoils System in Vol. II. 



64 THE NATIONAL GOVERNMENT part i 

for his perfect uprightness, took the Madisonian view and 
recognized the power of removal as vested in the President 
alone. So matters stood till a conflict arose in 1866 between 
President Johnson and the Republican majority in both Houses 
of Congress. In 1867, Congress fearing that the President 
would dismiss a great number of officials who sided with it 
against him, passed an Act, known as the Tenure of Office 
Act, which made the consent of the Senate necessary to the 
removal of office-holders, even of the President's (so-called) 
cabinet ministers, permitting him only to suspend them from 
office during the time when Congress was not sitting. The 
constitutionality of this Act has been much doubted, and its 
policy is now generally condemned. It was a blow struck in 
the heat of passion. When President Grant succeeded in 
1869, the Act was greatly modified, and in 1887 it was repealed. 

How dangerous it is to leave all offices tenable at the mere 
pleasure of a partisan Executive using them for party pur- 
poses, has been shown by the fruits of the Spoils system. On 
the other hand a President ought to be free to choose his chief 
advisers and ministers, and even in the lower ranks of the civil 
service it is hard to secure efficiency if a specific cause, such 
as could be proved to a jury, must be assigned for dismissal. 

The Constitution permits Congress to vest in the Courts of 
Law or in " the heads of departments " the right of appointing 
to " inferior offices." This provision has been used to remove 
many posts from the nomination of the President, and by the 
Civil Service Reform Act of 1883 competitive examinations 
have been instituted for about 34,000. A great number how- 
ever, roughly estimated at 3500, and including more than 2000 
post-masterships and some 600 places under the Treasury, 
remain in the free gift of the President ; while even as regards 
those which lie with his ministers, he may be invoked if dis- 
putes arise between the minister and politicians pressing the 
claims of their respective friends. The business of nominating 
is in ordinary times so engrossing as to leave the chief mag- 
istrate of the nation little time for his other functions. 

Artemus Ward's description of Abraham Lincoln swept 
along from room to room in the White House by a rising tide 
of office seekers is hardly an exaggeration. From the 4th of 
March, when Mr. Garfield came into power, till he was shot 



chajp. vi PRESIDENTIAL POWERS AND DUTIES 65 

in the July following, he was engaged almost incessantly in 
questions of patronage. 1 Yet the President's individual judg- 
ment has little scope. He must reckon with the Senate; he 
must requite the supporters of the men to whom he owes his 
election : he must so distribute places all over the country as 
to keep the local wire-pullers in good humour, and generally 
strengthen the party by " doing something " for those who have 
worked or will work for it. Although the minor posts are 
practically left to the nomination of the senators or congress- 
men from the State or district, conflicting claims give infinite 
trouble, and the more lucrative offices are numerous enough to 
make the task of selection laborious as well as thankless and 
disagreeable. In every country statesmen find the dispensing of 
patronage the most disagreeable part of their work; and the more 
conscientious they are, the more does it worry them. No one has 
more to gain from a thorough scheme of civil service reform than 
the President. The present system makes a wire-puller of him. It 
throws work on him unworthy of a fine intellect, and for which a 
man of fine intellect may be ill qualified. On the other hand the 
President's patronage is, in the hands of a skilful intriguer, an 
engine of far-spreading potency. By it he can oblige a vast num- 
ber of persons, can bind their interests to his own, can fill impor- 
tant places with the men of his choice. Such authority as he has 
over the party in Congress, and therefore over the course of leg- 
islation, such influence as he exerts on his party in the several 
States, and therefore over the selection of candidates for Con- 
gress, is due to his patronage. Unhappily, the more his patron- 
age is used for these purposes, the more it is apt to be diverted 
from the aim of providing the country with the best officials. 

In quiet times the power of the President is not great. He 
is hampered at every turn by the necessity of humouring his 
party. He is so much engrossed by the trivial and mechanical 
parts of his work as to have little leisure for framing large 
schemes of policy, while in carrying them out he needs the co- 
operation of Congress, which may be jealous, or indifferent, or 
hostile. He has less influence on legislation, — that is to say, 
his individual volition makes less difference to the course legis- 
lation takes, than the Speaker of the House of Representatives. 

1 It is related that a friend, meeting Mr. Lincoln one day during the war, 
observed, "You look anxious, Mr. President; is there had news from the 
front?" "No," answered the President, "it isn't the war: it's that post- 
mastership at Brownsville, Ohio." 

VOL. I F 



6(3 THE NATIONAL GOVERNMENT part i 

In troublous times it is otherwise, for immense responsibility is 
then thrown on one who is both the commander-in-chief and 
the head of the civil executive. Abraham Lincoln wielded 
more authority than any single Englishman has done since 
Oliver Cromwell. It is true that the ordinary law was for 
some particular purposes practically suspended during the 
War of Secession. But it will always have to be similarly 
suspended in similar crises, and the suspension makes the 
President a sort of dictator. 

Setting aside these exceptional moments, the dignity and 
power of the President have, except as respects the increase 
in the quantity of his patronage, grown but little during the 
last fifty years, that is, since the time of Andrew Jackson, the 
last President who, not so much through his office as by his per- 
sonal ascendency and the vehemence of his character, led and 
guided his party from the chair. Here, too, one sees how a 
rigid or supreme Constitution serves to keep things as they 
were. But for its iron hand, the office would surely, in a coun- 
try where great events have been crowded on one another and 
opinion changes rapidly under the teaching of events, have 
either risen or fallen, have gained strength or lost it. 

In no European country is there any personage to whom the 
President can be said to correspond. If we look at parlia- 
mentary countries like England, Italy, Belgium, he resembles 
neither the sovereign nor the prime minister, for the former is 
not a party chief at all, and the latter is palpably nothing else. 
The President enjoys more authority, if less dignity, than a 
European king. He has powers for the moment narrower than 
a European prime minister, but these powers are more secure, 
for they do not depend on the pleasure of a parliamentary 
majority, but run on to the end of his term. One naturally 
compares him with the French president, but the latter has a 
prime minister and cabinet, dependent on the Chamber, at once 
to relieve and to eclipse him : in America the President's cabi- 
net is a part of himself and has nothing to do with Congress. 
The president of the Swiss Confederation is merely the chair- 
man for a year of the Administrative Federal Council (Bundes- 
rath), andean hardly be called the executive chief of the nation. 

The difficulty in forming a just estimate of the President's 
power arises from the fact that it differs so much under ordi- 



chap, vi PRESIDENTIAL POWERS AND DUTIES 67 

nary and under extraordinary circumstances. This is a result 
which republics might seem specially concerned to prevent, and 
yet it is specially frequent under republics, as witness the 
cases of ancient Borne and of the Italian cities in the Middle 
Ages. In ordinary times the President may be compared to 
the senior or managing clerk in a large business establishment, 
whose chief function is to select his subordinates, the policy of 
the concern being in the hands of the board of directors. But 
when foreign affairs become critical, or when disorders within 
the Union require his intervention, — when, for instance, it 
rests with him to put down an insurrection or to decide which 
of two rival State governments he will recognize and support 
by arms, everything may depend on his judgment, his courage, 
and his hearty loyalty to the principles of the Constitution. 

It used to be thought that hereditary monarchs were strong 
because they reigned by a right of their own, not derived from 
the people. A President is strong for the exactly opposite 
reason, because his rights come straight from the people. We 
shall have frequent occasion to observe that nowhere is the 
rule of public opinion so complete as in America, or so direct, 
that is to say, so independent of the ordinary machinery of 
government. Now the President is deemed to represent the 
people no less than do the members of the legislature. Public 
opinion governs by and through him no less than them, and 
makes him powerful even against a popularly elected Congress. 
This is a fact to be remembered by those Europeans who seek 
in the strengthening of the hereditary principle a cure for the 
faults of government by assemblies. And it also suggests the 
risk that attaches to power vested in the hands of a leader 
directly chosen by the people. A high authority observes 1 : — 

" Our holiday orators delight with patriotic fervour to draw distinctions 
between our own and other countries, and to declare that here the law is 

1 Judge T. M. Cooley, in the International Review for Jan. 1875. He quotes 
the words of Edward Livingston: " The gloss of zeal for the public service is 
always spread over acts of oppression, and the people are sometimes made to 
consider that as a brilliant exertion of energy in their favour which, when 
viewed in its true light, would be found a fatal blow to their rights. In no 
government is this effect so easily produced as in a free republic ; party spirit, 
inseparable from its existence, aids the illusion, and a popular leader is allowed 
in many instances impunity, and sometimes rewarded with applause, for acts 
which would make a tyrant tremble on his throne." 



68 THE NATIONAL GOVERNMENT part i 

master and the highest officer but the servant of the law, while even in free 
England the monarch is irresponsible and enjoys the most complete per- 
sonal immunity. But such comparisons are misleading, and may prove 
mischievous. In how many directions is not the executive authority in 
America practically superior to what it is in England ! And can we say 
that the President is really in any substantial sense any more the servant 
of the law than is the Queen ? Perhaps if we were candid we should con- 
fess that the danger that the executive may be tempted to a disregard of the 
law may justly be believed greater in America than in countries where the 
chief magistrate comes to his office without the selection of the people ; 
and where consequently their vigilance is quickened by a natural dis- 
trust." 

Although recent Presidents have shown no disposition to 
strain their authority, it is still the fashion in America to be 
jealous of the President's action, and to warn citizens against 
what is called " the one man power." General Ulysses S. Grant 
was hardly the man to make himself a tyrant, yet the hostility 
to a third term of office which moved many people who had not 
been alienated by the faults of his administration, rested not 
merely on reverence for the example set by Washington, but 
also on the fear that a President repeatedly chosen would be- 
come, dangerous to republican institutions. This particular 
alarm seems to a^European groundless. I do not deny that a 
really great man might exert ampler authority from the presi- 
dential chair than its recent occupants have done. The same 
observation applies to the Popedom and even to the English 
throne. The President has a position of immense dignity, an 
unrivalled platform from which to impress his ideas (if he has 
any) upon the people. But it is hard to imagine a President 
overthrowing the existing Constitution. He has no standing 
army, and he cannot create one. Congress can checkmate him 
by stopping supplies. There is no aristocracy to rally round 
him. Every State furnishes an independent centre of resist- 
ance. If he were to attempt a coup d'etat, it could only be by 
appealing to the people against Congress, and Congress could 
hardly, considering that it is re-elected every two years, 
attempt to oppose the people. One must suppose a condition 
bordering on civil war, and the President putting the resources 
of the executive at the service of one of the intending belliger- 
ents, already strong and organized, in order to conceive a case 
in which he will be formidable to freedom. If there be any 



PRESIDENTIAL POWERS AND DUTIES 



danger, it would seem to lie in another direction. The larger a 
community becomes the less does it seem to respect an assem- 
bly, the more is it attracted by an individual man. A bold 
President who knew himself to be supported by a majority in 
the country, might be tempted to override the law, and deprive 
the minority of the protection which the law affords it. He 
might be a tyrant, not against the masses, but with the masses. 
But nothing in the present state of American politics gives 
weight to such apprehensions. 



CHAPTER VII 

OBSERVATIONS ON THE PRESIDENCY 

Although the President lias been, not that independent good 
citizen whom the framers of the Constitution contemplated, but, 
at least during the last sixty years, a party man, seldom much 
above the average in character or abilities, the office has attained 
the main objects for which it was created. Such mistakes as 
have been made in foreign policy, or in the conduct of the 
administrative departments, have been rarely owing to the 
constitution of the office or to the errors of its holder. This is 
more than one who should review the history of Europe during 
the last hundred years could say of any European monarchy. 
Nevertheless, the faults chargeable on hereditary kingship, 
faults more serious than Englishmen, who have watched with 
admiration the wisdom of the Crown during the present reign, 
usually realize, must not make us overlook certain defects inci- 
dental to the American presidency, perhaps to any plan of 
vesting the headship of the State in a person elected for a 
limited period. 

In a country where there is no hereditary throne nor heredi- 
tary aristocracy, an office raised far above all other offices 
offers too great a stimulus to ambition. This glittering prize, 
always dangling before the eyes of prominent statesmen, has a 
power stronger than any dignity under a European crown to 
lure them (as it lured Clay and Webster) from the path of 
straightforward consistency. One who aims at the presidency 

— and all prominent politicians do aim at it — lias the strongest 
possible motives to avoid making enemies. Now a great states- 
man ought to be prepared to make enemies. It is one thing 
to try to be popular — an unpopular man will be uninfluential 

— it is another to seek popularity by courting every section of 
your party. This is the temptation of presidential aspirants. 



chap, vii OBSERVATIONS ON THE PRESIDENCY 71 

A second defect is that the presidential election, occurring 
once in four years, throws the country for several months into 
a state of turmoil, for which there may be no occasion. Per- 
haps there are no serious party issues' to be decided, perhaps 
the best thing would be that the existing Administration should 
pursue the even tenor of its way. The Constitution, however, 
requires an election to be held, so the whole costly and compli- 
cated machinery of agitation is put in motion ; and if issues do 
not exist, they have to be created. 1 Professional politicians 
who have a personal interest in the result, because it involves 
the gain or loss of office to themselves, conduct what is called 
a " campaign," and the country is forced into a (possibly facti- 
tious) excitement from midsummer, when each party selects 
the candidate whom it will nominate, to the first week of 
November, when the contest is decided. There is some politi- 
cal education in the process, but it is bought dearly, not to add 
that business, and especially finance, . is disturbed, and much 
money spent unproductively. 

Again, these regularly recurring elections produce a discon- 
tinuity of policy. Even when the new President belongs to 
the same party as his predecessor, he usually nominates a new 
cabinet, having to reward his especial supporters. Many of 
the inferior offices are changed ; men who have learned their 
work make way for others who have everything to learn. If 
the new President belongs to the opposite party, the change 
of officials is far more sweeping, and involves larger changes of 
policy. The evil would be more serious were it not that in 
foreign policy, where the need for continuity is greatest, the 
United States has little to do, and that the co-operation of the 
Senate in this department qualifies the divergence of the ideas 
of one President from those of another. 

Fourthly. The fact that he is re-eligible once, but (practi- 
cally) only once, operates unfavourably on the President. He 
is tempted to play for a re-nomination by Bo pandering to active 

1 In England, also, there is necessarily a campaign once at least in every 
six or seven years, when a general election takes place, and sometimes oftener. 
But note that in England (1) this is the only season of disturbance, whereas 
in America the Congressional elections furnish a second; (2) the period is 
usually shorter (three to six weeks, not four months) ; (3) there are usually 
real and momentous issues, dividing the great parties, which the nation has 
to settle. 



72 THE NATIONAL GOVERNMENT i-.v.n r 

sections of his own party, or so using his patronage to concili- 
ate influential politicians, as to make them put him forward at 
the next election. On the other hand, if he is in his second 
term of office, he has no longer much motive to regard the 
interests of the nation at large, because he sees that his own 
political death is near. It may be answered that these two 
evils will correct one another, that the President will in his 
first term be anxious to win the respect of the nation, in his 
second he will have no motive for yielding to the unworthy 
pressure of party wire-pullers ; while in reply to the suggestion 
that if he were held ineligible for the next term, but eligible 
for any future term, both sets of evils might be avoided, and 
both sets of benefits secured, it can be argued that such a pro- 
vision would make that breach in policy which may now hap- 
pen only once in eight years, necessarily happen once in four 
years. It would, for instance, have prevented the re-election 
of Abraham Lincoln in 1864. 

The founders of the Southern Confederacy of 1861-65 were 
so much impressed by the objections to the present system 
that they provided that their President should hold office for 
six years, but not be re-eligible. 

Fifthly. An outgoing President is a weak President. Dur- 
ing the four months of his stay in office after his successor 
has been chosen, he declines, except in cases of extreme neces- 
sity, to take any new departure, to embark on any executive 
policy which cannot be completed before he quits office. This 
is, of course, even more decidedly the case if his successor 
belongs to the opposite party. 1 

Lastly. The result of an election may be doubtful, not 
from equality of votes, for this is provided against, but from a 
dispute as to the validity of votes given in or reported from 

1 Mr. E. A. Freeman (History of Federal Government, i. 302) adduces from 
Poly bins (iv. (5, 7) a curious instance showing thai the same mischief arose 
in the Achaian League: " The AStolians chose for an inroad the time when the 
official year (of the Achaian General) was drawing to its close, as a time when 
the Achaian counsels were sure to be weak. Aratos, the General elect, was 
not yet in office; Timoxenos, the outgoing General, shrank Eroin energetic 
action so late in bis year, and at last yielded up his office to Aratos before the 
legal time." This effort ol Timoxenos to escape from the consequences of the 
system could not have occurred in governments like those of Rome, England, 
or the United states, where " the reign of law" is far stricter than it was In 
the Greek republics. 



chap, vii OBSERVATIONS ON THE PRESIDENCY 73 

the States. The difficulty which arose in 1876 will not, 
owing to the legislation of 1887, recur in quite the same form. 
But cases may arise in which the returns from a State of its 
electoral votes will, because notoriously obtained by fraud 
or force, fail to be recognized as valid by the party whose can- 
didate they prejudice. No presidential election passes without 
charges of this kind, and these charges are not always un- 
founded. Should manifest unfairness coincide with popular 
excitement over a really important issue, the self-control of 
the people, which in 1877, when no such issue was involved, 
restrained the party passions of their leaders, may prove un- 
equal to the strain of such a crisis. 

Further observations on the President, as a part of the 
machinery of government, will be better reserved for the dis- 
cussion of the relations of the executive and legislative 
departments. I will therefore only observe here that, even 
when we allow for the defects last enumerated, the presidential 
office, if not one of the best features of the American Consti- 
tution, is nowise to be deemed a failure. The problem of con- 
structing a stable executive in a democratic country is indeed 
so immensely difficult that anything short of a failure deserves 
to be called a success. ISTow the President has, during ninety- 
nine years, carried on the internal administrative business of 
the nation with due efficiency. Once or twice, as when Jeffer- 
son purchased Louisiana, and Lincoln emancipated the slaves 
in the revolted States, he has courageously ventured on 
stretches of authority, held at the time to be doubtfully con- 
stitutional, yet necessary, and approved by the judgment of 
posterity. He has kept the machinery working quietly and 
steadily when Congress has been distracted by party strife, or 
paralyzed by the dissensions of the two Houses, or enfeebled by 
the want of first-rate leaders. The executive has been able, at 
moments of peril, to rise almost to a dictatorship, as during 
the War of Secession, and when peace returned, to sink 
back into its proper constitutional position. It has shown no 
tendency so to dwarf the other authorities of the State as to 
pave the way for a monarchy. 

Europeans are struck by the faults of a plan which plunges 
the nation into a whirlpool of excitement once every four years, 
and commits the headship of the State to a party leader chosen 



U THE NATIONAL GOVERNMENT taut i 

for a short period. 1 But there is another aspect in which the 
presidential election may be regarded, and one whose impor- 
tance is better appreciated in America than in Europe. The 
election is a solemn periodical appeal to the nation to review 
its condition, the way in which its business has been carried 
on, the conduct of the two great parties. It stirs and rouses 
the nation as nothing else does, forces every one not merely to 
think about public affairs but to decide how he judges the 
parties. It is a direct expression of the will of twelve mill- 
ions of voters, a force before which everything must bow. It 
refreshes the sense of national duty; and at great crises it 
intensifies national patriotism. A presidential election is 
sometimes, as in 1800, and as again most notably in 1860 and 
1864, a turning-point in history. In form it is nothing more 
than the choice of an administrator who cannot influence 
policy otherwise than by refusing his assent to bills. In 
reality it is the deliverance of the mind of the people upon all 
such questions as they feel able to decide. A curious parallel 
may in this respect be drawn between it and a general election 
of the House of Commons in England. A general election is 
in form a choice of representatives, with reference primarily 
to their views upon various current questions. In substance 
it is often a national vote, committing executive power to some 
one prominent statesman. Thus the elections of 1868, 1874, 
1880, were practically votes of the nation to place Mr. Glad- 
stone or Mr. Disraeli at the head of the government. So con- 
versely in America, a presidential election, which purports to 
be merely the selection of a man, is often in reality a decision 
upon issues of policy, a condemnation of the course taken by 
one party, a mandate to the other to follow some different 
course. 

The choice of party leaders as Presidents lias in America 
caused less mischief than might have been expected. Never- 
theless, those who have studied the scheme of constitutional 
monarchy as it works in England, or Belgium, or Italy, or the 
reproductions of that scheme in British colonies, where the 

1 Such faults as belong to the plan of popular election are not noeessarily 
incidenl to the existence <>i' a President ; for in France tin 1 chief magistrate is 
chosen by the Chambers, and the Interposition between him and the legislature 

of a responsible ministry servos to render liis position less distinctly partisan. 



chap, vii OBSERVATIONS ON THE PRESIDENCY 75 

Crown-appointed governor stands ontside the strife of factions 
as a permanent official, will, when they compare the institu- 
tions of these countries with the American presidency, be im- 
pressed by the merits of a plan which does not unite all the 
dignity of office with all the power of office, and which, by 
placing the titular chief of the executive above and apart from 
party, makes the civil and military services feel themselves 
the servants rather of the nation than of any section of the 
nation, and suggests to them that their labours ought to be 
rendered with equal heartiness to whatever party may hold the 
reins of government. Party government may be necessary. 
So far as we can see, it is necessary. But it is an unfortunate 
necessity ; and whatever tends to diminish its mischievous in- 
fluence upon the machinery of administration, and to prevent 
it from obtruding itself upon foreign states ; whatever holds 
up a high ideal of devotion to the nation as a majestic whole, 
living on from century to century while parties form and dis- 
solve and form again, strengthens and ennobles the common- 
wealth and all its citizens. 

Such an observation of course applies only to monarchy as a 
political institution. Socially regarded, the American presi- 
dency deserves nothing but admiration. The President is 
simply the first citizen of a free nation, depending for his 
dignity on no title, no official dress, no insignia of state. It 
was originally proposed, doubtless in recollection of the Eng- 
lish Commonwealth of the seventeenth century, to give him 
the style of " Highness," and " Protector of the Liberties of 
the United States." Others suggested " Excellency " ; 1 and 
Washington is said to have had leanings to the Dutch style of 
" High Mightiness." The head of the ruling President does 
not appear on coins, nor even on postage stamps. 2 His resi- 
dence at Washington called officially "the Executive Mansion," 
and familiarly " the White House," a building with a stucco 
front and a portico supported by Corinthian pillars, said to 

1 In ridicule of this the more democratic members of Congress proposed to 
call that more ornamental than useful officer the Vice-President "His Super- 
fluous Excellency." 

2 The portraits on American postage stamps are those of several past Presi- 
dents—Washington, Jefferson, Jackson, Taylor, Lincoln, Grant, Garfield, 
and of a few eminent statesmen, such as Franklin, Hamilton, Clay, Webster, 
Scott, Perry, Stanton. 



THE NATIONAL GOVERNMENT 



have been modelled upon the Duke of Leinster's house in Dul >- 
lin, stands in a shrubbery, and has the air of a large suburban 
villa rather than of a palace. The rooms, though spacious, are 
not spacious enough for the crowds that attend the public 
receptions. The President's salary, which is only $50,000 
(£10,000) a year, does not permit display, nor indeed is dis- 
play expected from him. 

Washington, which even so lately as the days of the war 
was a wilderness of mud and negroes, with a few big houses 
scattered here and there, has now become one of the hand- 
somest capitals in the world, and cultivates the graces and 
pleasures of life with eminent success. Besides its political 
society and its diplomatic society, it is becoming a winter resort 
for men of wealth and leisure from all over the continent. 
It is a place where a court might be created, did any one wisli 
to create it. No President has made the attempt ; and as the 
earlier career of the chief magistrate and his wife has seldom 
qualified them to lead the world of fashion, none is likely to 
make it. However, the action of the wife of President Hayes. 
an estimable lady, whose ardent advocacy of temperance caused 
the formation of many total abstinence societies, called by her 
name, showed that there may be fields in which a President^ 
consort can turn her exalted position to good account, while 
of course such gifts or charms as she possesses will tend to 
increase his popularity. 

To a European observer, weary of the slavish obsequiousness 
and lip-deep adulation with which the members of reigning 
families are treated on the eastern side of the Atlantic, fawned 
on in public and carped at in private, the social relations of an 
American President to his people are eminently refreshing. 
There is a great respect for the office, and a corresponding 
respect for the man as the holder of the office, if he has done 
nothing to degrade it. There is no servility, do fictitious Belf- 
abasement on the part of the citizens, but a simple and hearty 
deference to one who represents the majesty ^^\' the nation, the 
sort of respect which the proudest Roman paid to the consul- 
ship, even if the particular consul was. like Cicero, a "new 
man." The curiosity of the visitors who throng the White 
House on reception days is sometimes too familial-: but this 

fault tends to disappear, and Presidents have now more reason 



chap, vii OBSERVATIONS ON THE PRESIDENCY 77 

to complain of the persecutions they endure from an incessantly- 
observant journalism. After oscillating between the ceremo- 
nious state of George Washington, who drove to open Congress 
in his coach and six, with outriders and footmen in livery, and the 
ostentatious plainness of Citizen Jefferson, who would ride up 
alone and hitch his horse to the post at the gate, 1 the President 
has settled down into an attitude between that of the mayor of a 
great English town on a public occasion, and that of a European 
cabinet minister on a political tour. He is followed about and 
feted, and in every way treated as the first man in the company ; 
but the spirit of equality which rules the country has sunk too 
deep into every American nature for him to expect to be 
addressed with bated breath and whispering reverence. He 
has no military guard, no chamberlains or grooms-in- waiting ; 
his everyday life is simple ; his wife enjoys precedence over all 
other ladies, but is visited and received just like other ladies ; 
he is surrounded by no such pomp and enforces no such eti- 
quette as that which belongs to the governors even of second- 
class English colonies, not to speak of the viceroys of India and 
Ireland. 

It begins to be remarked in Europe that monarchy, which 
used to be deemed politically dangerous but socially useful, has 
now, since its claws have been cut, become politically valuable, 
but of doubtful social utility. In the United States the most 
suspicious democrat — and there are democrats who complain 
that the office of President is too monarchical — cannot accuse 
the chief magistracy of having tended to form a court, much 
less to create those evils which thrive in the atmosphere of 
European courts. No President dare violate social decorum as 
European sovereigns have so often done. If he did, he would 
be the first to suffer. 

1 Mr. H. Adams (First Administration of Jefferson, vol. i. p. 197) has, how- 
ever, shown that at his inauguration Jefferson walked. 



CHAPTER VIII 

WHY GREAT MEN ARE NOT CHOSEN PRESIDENTS 

Europeans often ask, and Americans do not always explain, 
how it happens that this great office, the greatest in the world, 
unless we except the Papacy, to which any one can rise by his 
own merits, is not more frequently filled by great and striking 
men. In America, which is beyond all other countries the 
country of a " career open to talents," a country, moreover, in 
which political life is unusually keen and political ambition 
widely diffused, it might be expected that the highest place 
would always be won by a man of brilliant gifts. But since the 
heroes of the Revolution died out with Jefferson and Adams and 
Madison some sixty years ago, no person except General Grant 
has reached the chair whose name would have been remembered 
had he not been President, and no President except Abraham 
Lincoln has displayed rare or striking qualities in the chair 
Who now knows or cares to know anything about the person- 
ality of James K. Polk or Franklin Pierce ? The only thing 
remarkable about them is that being so commonplace they 
should have climbed so high. 

Several reasons may be suggested for the fact, which Ameri- 
cans are themselves the first to admit. 

One is that the proportion of first-rate ability drawn into 
politics is smaller in America than in most European countries. 
This is a phenomenon whose causes must be elucidated later: 
in the meantime it is enough to say that in France and Italy, 
where half-revolutionary conditions have made public life excit- 
ing and accessible ; in Germany, where an admirably-organized 
civil service cultivates and develops statecraft with unusual 
success; in England, where many persons o[' wealth and leisure 
seek to enter the political arena, while burning questions touch 
i he interests of all classes and make men eager observers of the 

78 



chap, vin WHY GREAT MEN ARE NOT CHOSEN 79 

combatants, the total quantity of talent devoted to parliamen- 
tary or administrative work is larger, relatively to the popula- 
tion, than in America, where much of the best ability, both for 
thought and for action, for planning and for executing, rushes 
into a field which is comparatively narrow in Europe, the busi- 
ness of developing the material resources of the country. 

Another is that the methods and habits of Congress, and 
indeed of political life generally, give fewer opportunities for 
personal distinction, fewer modes in which a man may commend 
himself to his countrymen by eminent capacity in thought, in 
speech, or in administration, than is the case in the free coun- 
tries of Europe. This is a point to be explained in later chap- 
ters. I note here in passing what will there be dwelt on. 

A third reason is that eminent men make more enemies, and 
give those enemies more assailable points, than obscure men do. 
They are therefore in so far less desirable candidates. It is 
true that the eminent man has also made more friends, that his 
name is more widely known, and may be greeted with louder 
cheers. Other things being equal, the famous man is prefer- 
able. But other things never are equal. The famous man has 
probably attacked some leaders in his own party, has supplanted 
others, has expressed his dislike to the crotchet of some active 
section, has perhaps committed errors which are capable of 
being magnified into offences. No man stands long before the 
public and bears a part in great affairs without giving openings 
to censorious criticism. Fiercer far than the light which beats 
upon a throne is the light which beats upon a presidential can- 
didate, searching out all the recesses of his past life. Hence, 
when the choice lies between a brilliant man and a safe man, 
the safe man is preferred. Party feeling, strong enough to 
carry in on its back a man without conspicuous positive merits, 
is not always strong enough to procure forgiveness for a man 
with positive faults. 

A European finds that this phenomenon needs in its turn to 
be explained, for in the free countries of Europe brilliancy, be 
it eloquence in speech, or some striking achievement in war or 
administration, or the power through whatever means of some- 
how impressing the popular imagination, is what makes a leader 
triumphant. Why should it be otherwise in America ? Because 
in America party loyalty and party organization have been 



80 THE NATIONAL GOVERNMENT part i 

hitherto so perfect that any one pnt forward by the party will 
get the full party vote if his character is good and his "record," 
as they call it, unstained. The safe candidate may not draw 
in quite so many votes from the moderate men of the other 
side as the brilliant one would, but he will not lose nearly so 
many from his own ranks. Even those who admit his medi- 
ocrity will vote straight when the moment for voting comes. 
Besides, the ordinary American voter does not object to medi- 
ocrity. He has a lower conception of the qualities requisite to 
make a statesman than those who direct public opinion in 
Europe have. He likes his candidate to be sensible, vigorous, 
and, above all, what he calls " magnetic," and does not value, 
because he sees no need for, originality or profundity, a fine 
culture or a wide knowledge, Candidates are selected to be run 
for nomination by knots of persons who, however expert as 
party tacticians, are usually commonplace men; and the choice 
between those selected for nomination is made by a very 
large body, an assembly of over eight hundred delegates from 
the local party organizations over the country, who are cer- 
tainly no better than ordinary citizens. How this process 
works will be seen more fully when I come to speak of those 
Nominating Conventions which are so notable a feature in 
American politics. 

It must also be remembered that the merits of a President 
are one thing and those of a candidate another thing. An 
eminent American is reported to have said to friends who 
wished to put him forward, " Gentlemen, let there be no mis- 
take. I should make a good President, but a very bail candi- 
date." Now to a party it is more important that its nominee 
should be a good candidate than that he should turn out a 
good President. A nearer danger is a greater danger. As 
Saladin says in The Talisman, "A wild eat in a chamber is 
more dangerous than a lion in a distant desert." It will be a 
misfortune to the party, as well as to the country, if the can- 
didate elected should prove a bad President. But it is a 
greater misfortune to the party that it should be beaten in the 
impending election, for the evil of Losing national patronage 
will have come four years sooner. •• B "" (so reason the lead- 
ers), "who is one of our possible candidates, may be an abler 
man than A, who is the other. But we have a better chance 



chap, viii WHY GEEAT MEN ARE NOT CHOSEN 81 

of winning with A than with. B, while X, the candidate of our 
opponents, is anyhow no better than A. We must therefore 
run A." This reasoning is all the more forcible because the 
previous career of the possible candidates has generally made 
it easier to say who will succeed as a candidate than who will 
succeed as a President; and because the wire-pullers with 
whom the choice rests are better judges of the former question 

(than of the latter. 
After all, too, a President need not be a man of brilliant 
intellectual gifts. His main duties are to be prompt and firm 
in securing the due execution of the laws and maintaining the 
public peace, careful and upright in the choice of the executive 
officials of the country. Eloquence, whose value is apt to be 
overrated in all free countries, imagination, profundity of 
thought or extent of knowledge, are all in so far a gain to him 
that they make him "a bigger man," and help him to gain 
over the nation an influence which, if he be a true patriot, he 
may use for its good. But they are not necessary for the due 
discharge in ordinary times of the duties of his post. Four- 
fifths of his work is the same in kind as that which devolves 
on the chairman of a commercial company or the manager of 
a railway, the work of choosing good subordinates, seeing that 
they attend to their business, and taking a sound practical 
view of such administrative questions as require his decision. 
Firmness, common sense, and most of all, honesty, an honesty 
above all suspicion of personal interest, are the qualities which 
the country chiefly needs in its first magistrate. 

So far we have been considering personal merits. But in 
the selection of a candidate many considerations have to be 
regarded besides the personal merits, whether of a candidate, 
or of a possible President. The chief of these considerations 
is the amount of support which can be secured from different 
States or from different " sections " of the Union, a term by 
which the Americans denote groups of States with a broad 
community of interest. State feeling and sectional feeling 
are powerful factors in a presidential election. The North- 
west, including the States from Ohio to Dakota, is now the 
most populous section of the Union, and therefore counts 
for most in an election. It naturally conceives that its 
interests will be best protected by one who knows them 
vol. i g 



82 THE NATIONAL GOVERNMENT part i 

from birth and residence. Hence prima facie a North-western 
man makes the best candidate. A large State casts a heavier 
vote in the election ; and every State is of course more likely 
to be carried by one of its own children than by a -stranger, 
because his fellow-citizens, while they feel honoured by the 
choice, gain also a substantial advantage, having a better 
prospect of such favours as the administration can bestow. 
Hence, cmteris paribus, a man from a large State is preferable 
as a candidate. The problem is further complicated by the 
fact that some States are already safe for one or other part}-, 
while others are doubtful. The North-western and New Eng- 
land States are most of them likely to go Republican: the 
Southern States are (at present) all of them certain to go 
Democratic. Coeteris paribus, a candidate from a doubtful 
State, such as New York and Indiana have usually been, is to 
be preferred. 

Other minor disqualifying circumstances require less ex- 
planation. A Roman Catholic, or an avowed disbeliever in 
Christianity, would be an undesirable candidate. Since the 
close of the Civil War, any one who fought, especially if he 
fought with distinction, in the Northern army, lias enjoyed 
great advantages, for the soldiers of that army, still numerous, 
rally to his name. The two elections of General Grant, who 
knew nothing of politics, and the fact that his influence sur- 
vived the faults of his long administration, are evidence of 
the weight of this consideration. 

On a railway journey in the Far West in 1883 I fell in with 
two newspaper men from the State of Indiana, who were tak- 
ing their holiday. The conversation turned on the next presi- 
dential election. They spoke hopefully of the chances for 
nomination by their party of an Indiana man. a comparatively 
obscure person, whose name 1 had never heard. I expi 
sonic surprise that he should be thought of. They observed 
that he had done well in State politics, that there was nothing 
against him. that Indiana would work for him. ""Rut." T 
rejoined, "ought you not to have a man of more commanding 
character? There is Senator A. Everybody tells me that he 
is the shrewdest and most experienced man in your party, and 
that he has a perfectly elean record. Why not run him ? " 
"Why, yes," they answered. •• that is all true. But you see 



chap, vin WHY GREAT MEN ARE NOT CHOSEN 83 

he comes from a small State, and we have got that State 
already. Besides, he wasn't in the war. Our man was. 
Indiana's vote is worth having, and if our man is run, we can 
carry Indiana." 

" Surely the race is not to the swift, nor the battle to the 
strong, neither yet bread to the wise, nor yet riches to men of 
understanding, nor yet favour to men of skill, but time and 
chance happeneth to them all." 

These secondary considerations do not always prevail. In- 
tellectual ability and force of character must influence the 
choice of a candidate, and their influence is sometimes deci- 
sive. They count for more when times are so critical that the 
need for a strong man is felt. Reformers declare that their 
weight will go on increasing as the disgust of good citizens 
with the methods of professional politicians increases. But 
for many generations past it is not the greatest men in the 
Roman Church that have been chosen Popes, nor the most 
brilliant men in the Anglican Church that have been ap- 
pointed Archbishops of Canterbury. 

Although several Presidents have survived their departure 
from office by many years, only one, John Quincy Adams, 
played a part in politics after quitting the White House. 1 It 
may be that the ex-President has not been a great leader before 
his accession to office ; it may be that he does not care to exert 
himself after he has held and dropped the great prize, and 
found (one may safely add) how little of a prize it is. Some- 
thing, however, must also be ascribed to other features of the 
political system of the country. It is often hard to find a 
vacancy in the representation of a given State through which 
to re-enter Congress ; it is disagreeable to recur to the arts by 
which seats are secured. Past greatness is rather an encum- 
brance than a help to resuming a political career. Exalted 
power, on which the unsleeping eye of hostile critics was 
fixed, has probably disclosed all a President's weaknesses, and 
has either forced him to make enemies by disobliging adhe- 
rents, or exposed him to censure for subservience to party 

1 J. Q. Adams was elected to the House of Representatives within three 
years from his presidency, and there became for seventeen years the fearless 
and formidable advocate of what may be called the national theory of the 
Constitution against the slaveholders. 



84 THE NATIONAL GOVERNMENT part i 

interests. He is regarded as having had his day ; he belongs 
already to the past, and unless, like Grant, he is endeared to 
the people by the memory of some splendid service, or is 
available to his party as a possible candidate for a further 
term of office, he soon sinks into the crowd or avoids neglect 
by retirement. Possibly he may deserve to be forgotten; 
but more frequently he is a man of sufficient ability and char- 
acter to make the experience he has gained valuable to the 
country, could it be retained in a place where he might turn it 
to account. They managed things better at Rome, gathering 
into their Senate all the fame and experience, all the wisdom 
and skill, of those who had ruled and fought as consuls and 
praetors at home and abroad. 

We may now answer the question from which we started. 
Great men are not chosen Presidents, first because great men 
are rare in politics ; secondly, because the method of choice 
does not bring them to the top ; thirdly, because they are not, 
in quiet times, absolutely needed. Let us close by observing 
that the Presidents, regarded historically, fall into three peri- 
ods, the second inferior to the first, the third rather better than 
the second. 

Down till the election of Andrew Jackson in 182S, all the 
Presidents had been statesmen in the European sense of the 
word, men of education, of administrative experience, of a cer- 
tain largeness of view and dignity of character. All except 
the first two had served in the great office of secretary of state ; 
all were well known to the nation from the part they had 
played. In the second period, from Jackson till the outbreak 
of the Civil War in 1861, the Presidents were either mere poli- 
ticians, such as Van Buren, Polk, or Buchanan, or else sue 
ful soldiers, 1 such as Harrison or Taylor, whom their party 
found useful as figure-heads. They were intellectual pigmies 
beside the real leaders of that generation — Clay. Calhoun, and 
Webster. Anew series begins with Lincoln in 1861. He and 
General Grant his successor, who cover sixteen years between 
them, belong to the history of the world. The other less dis- 
tinguished Presidents o\' this period contrast favourably with 
the Polks and Pierces of the days before the war. but they are 

1 Jackson himseli was something of both politician ami soldier, a strung 
character, bat b narrow and uncultivated intellect. 



chap, vin WHY GREAT MEN ARE NOT CHOSEN 85 

not, like the early Presidents, the first men of the country. 
If we compare the nineteen Presidents who have been elected to 
office since 1789 with the nineteen English prime ministers 
of the same hundred years, there are but six of the latter, and 
at least eight of the former whom history calls personally 
insignificant, while only Washington, Jefferson, Lincoln, and 
Grant can claim to belong to a front rank represented in the 
English list by seven or possibly eight names. 1 It would seem 
that the natural selection of the English parliamentary sys- 
tem, even as modified by the aristocratic habits of that coun- 
try, has more tendency to bring the highest gifts to the high- 
est place than the more artificial selection of America. 

1 The American average would be further lowered were we to reckon in the 
four Vice-Presidents who have succeeded on the death of the President. Yet 
the English system does not always secure men personally eminent. Adding- 
ton, Perceval, and Lord Goderich are no better than Tyler or Fillmore, which 
is saying little enough. 



CHAPTER IX 

THE CABINET 

There is in the government of the United States no such 
thing as a Cabinet in the English sense of the term. But I 
use the term, not only because it is current in America to de- 
scribe the chief ministers of the President, but also because it 
calls attention to the remarkable difference which exists be- 
tween the great officers of State in America and the similar 
officers in the free countries of Europe. 

Almost the only reference in the Constitution to the minis- 
ters of the President is that contained in the power given him 
to " require the opinion in writing of the principal officer in 
each of the executive departments upon any subject relating to 
the duties of their respective offices." All these departments 
have been created by Acts of Congress. Washington began 
in 1789 with four only, at the head of whom were the follow- 
ing four officials : — 

Secretary of State. 
Secretary of the Treasury. 
Secretary of War. 
Attorney-General. 

In 1798 there was added a Secretary of the Navy, in 1829 a 
Postmaster-General, 1 in 1849 a Secretary of the Interior, and in 
1888 a Secretary of Agriculture. 

These eight now make up what is called the Cabinet. 8 Each 

1 The postmaster-general had been previously deemed a subordinate In the 
Treasury department, although the office was organized by Act of Congress in 
17!>1; he has been held to belong to the cabinet Bince Jackson in 1829 Invited 
him to cabinet meetings. 

- There is also an Inter-state Commerce Commission, with large powers over 
railways, created in February 1887 by Act of Congress; a Labour Bureau 
erected into a depart incut in 1888; a Fish Commission created In 1870; and a 
Civil Service Commission created in L88S. 
86 



THE CABINET 87 



receives a salary of $8000 (£1600). All are appointed by 
the President, subject to the consent of the Senate (which is 
practically never refused), and may be removed by the Presi- 
dent alone. Nothing marks them off from any other officials 
who might be placed in charge of a department, except that 
they are summoned by the President to his private council. 

None of them can vote in Congress, Art. xi. § 6 of the Con- 
stitution providing that " no person holding any office under 
the United States shall be a member of either House during 
his continuance in office." 

This restriction was intended to prevent the President not 
merely from winning over individual members of Congress by 
the allurements of office, but also from making his ministers 
agents in corrupting or unduly influencing the representatives 
of the people, as George III. and his ministers corrupted the 
English Parliament. There is a passage in the Federalist 
(Letter xl.) which speaks of " Great Britain, where so great a 
proportion of the members are elected by so small a proj)or- 
tion of the people, where the electors are so corrupted by the 
representatives, and the representatives so corrupted by the 
Crown." The Fathers of the Constitution were so resolved to 
avert this latter form of corruption that they included in their 
instrument the provision just mentioned. Its wisdom has 
sometimes been questioned. But it deserves to be noticed that 
the Constitution contains nothing to prevent ministers from 
being present in either House of Congress and addressing it, 1 as 
the ministers of the King of Italy or of the French President 
may do in either chamber of Italy or France. 2 It is absolutely 
silent on the subject of communications between officials (other 
than the President) and the representatives of the people. 

The President has the amplest range of choice for his min- 
isters. He usually forms an entirely new cabinet when he 
enters office, even if he belongs to the same party as his pred- 

1 In February 1881 a committee of eight senators unanimously reported in 
favour of a plan to give seats (of course without the right to vote) in both 
Houses of Congress to cabinet ministers, they to attend on alternate days in 
the Senate and in the House. The committee recommended that the necessary 
modification in the rules should be made, adding that they had no doubt of 
the constitutionality of the proposal. Nothing has so far been done to carry 
out this report. 

2 The Italian ministers usually are members of one or other House. Of 
course they cannot vote except in the House to which they have been chosen. 



88 THE NATIONAL GOVERNMENT part i 

ecessor. He may take, he sometimes does take, men who not 
only have never sat in Congress, but have not figured in poli- 
tics at all, who may never have sat in a State legislature nor 
held the humblest office. 1 Generally of course the persons 
chosen have already made for themselves a position of at least 
local importance. Often they are those to whom the new 
President owes his election, or to whose influence with the 
party he looks for support in his policy. Sometimes they 
have been his most prominent competitors for the party nomi- 
nations. Thus Mr. Lincoln in 1860 appointed Mr. Seward and 
Mr. Chase to be his secretary of state and secretary of the 
treasury respectively, they being the two men who had come 
next after him in the selection by the Republican party of a 
presidential candidate. 

The most dignified place in the cabinet is that of the Secre- 
tary of State. It is the great prize often bestowed on the man 
to whom the President is chiefly indebted for his election, or 
at any rate on one of the leaders of the party. In early days, 
it was regarded as the stepping-stone to the presidency. Jef- 
ferson, Madison, Monroe, and J. Q. Adams had all served as 
secretaries to preceding presidents. The conduct of foreign 
affairs is the chief duty of the State department : its head has 
therefore a larger stage to play on than any other minister, 
and more chances of fame. His personal importance is all the 
greater because the President is usually so much absorbed by 
questions of patronage as to be forced to leave the secretary 
to his own devices. Hence the foreign policy of the adminis- 
tration is practically that of the secretary, except so far as the 
latter is controlled by the Senate. The State department has 
also the charge of the great seal of the United States, keeps 
the archives, publishes the statutes, and of course instructs 
and controls the diplomatic and consular services. It is often 
said of the President that he is ruled, or as the Americans ex- 
press it, "run," by his secretary; but naturally this happens 
only when the secretary is the stronger man. and in the same 
way it has been said of Presidents before now thai they were, 
like sultans, ruled by their wives, or by their boon companions. 

The Secretary of the Treasury is minister of finance. His 

1 Only two members of Mr. Harrison's cabinet, formed in L889, hail ever sat 
in Congress. 



THE CABINET 



function was of the utmost importance at the beginning of the 
government, when a national system of finance had to'be built 
up and the Federal Government rescued from its grave embar- 
rassments. Hamilton, who then held the office, effected both ; 
and the work of Gallatin, who served under Jefferson, was 
scarcely less important. During the War of Secession, it be- 
came again powerful, owing to the enormous loans contracted 
and the quantities of paper money issued, and it remains so 
now, because it has the management (so far as Congress per- 
mits) of the currency and the national debt. The secretary 
has, however, by no means the same range of action as a 
finance minister in European countries, for as he is excluded 
from Congress, although he regularly reports to it, he has 
nothing directly to do with the imposition of taxes, and very 
little with the appropriation of revenue to the various burdens 
of the State. 1 

The Secretary of the Interior is far from being the omni- 
present power which a minister of the interior is in "France or 
Italy, or even a Home Secretary in England, since nearly all 
the functions which these officials discharge belong in Amer- 
ica to the State governments or to the organs of local govern- 
ment. He is chiefly occupied in the management of the public 
lands, still of immense value, despite the lavish grants made 
to railway companies, and with the conduct of Indian affairs, 
a troublesome and unsatisfactory department, which has al- 
ways been a reproach to the United States, and will apparently 
continue so till the Indians themselves disappear or become 
civilized. Patents and pensions, the latter a source of great 
expense and abuse, also belong to his province, as do the 
national census and the geological survey. 

The duties of the Secretaries of War, of the Navy, of Agri- 
culture, and of the Postmaster-General may be gathered from 
their names. But the Attorney-General is sufficiently differ- 
ent from his English prototype to need a word of explanation. 
He is not only public prosecutor and standing counsel for the 
United States, but also to some extent what is called on the 
European continent a minister of justice. He has a general 

1 See post, Chapter XVII (Congressional Finance), where it will be shown 
that the chairmen of the committees of Ways and Means and of Appropria- 
tions are practically additional ministers of finance. 



90 THE NATIONAL GOVERNMENT pari i 

oversight — it can hardly be described as a control — of the 
Federal judicial departments, and especially of the prosecut- 
ing officers called district attorneys, and executive court offi- 
cers, called United States marshals. He is the legal adviser 
of the President in those delicate questions, necessarily fre- 
quent under the Constitution of the United States, which 
arise as to the limits of the executive power and the relations 
of Federal to State authority, and generally in all legal mat- 
ters. His opinions are frequently published officially, as a 
justification of the President's conduct, and an indication of 
the view which the executive takes of its legal position and 
duties in a pending matter. 1 The attorney-general is always a 
lawyer of eminence, but not necessarily in the front rank of 
the profession, for political considerations have much to do 
with determining the President's choice. 2 

It will be observed that from this list of ministerial offices 
several are wanting which exist in Europe. V^hus there is no 
colonial minister, because no colonies ; no minister of educa- 
tion, because that department of business belongs to the sev- 
eral States ; 3 no minister of public worship, because the United 
States Government has nothing to do with any particular form 
of religion ; no minister of commerce, because the activity of 
the Federal Government in that direction, although increas- 
ing, is still limited; no minister of public works, because 
grants made for this purpose come direct from Congress with- 
out the intervention of the executive, and are applied as Con- 
gress directs. 4 Much of the work which in Europe would 
devolve on members of the administration falls in America to 

1 Another variance from the practice of England, where the opinions of the 
law officers of the Crown are always treated as confidential. 

2 The Solicitor-General is a sort of assistant to the attorney, and not (as in 
England) a colleague. 

8 There was established hy Acts of 18(57 and 1869 a Bureau of Education, 
attached to the department of the interior, hut its function is only to collect 

and diffuse information on educational subjects. This it does with assiduity 
and success. 

•' Money voted for river and harhour improvements is voted in sums appro- 
priated to each particular piece of work. The work is supervised by officers 
of the Engineer corps of the United States army, under the genera] direction 
of the War department. Public buildings arc erected under the direction of 

an official called the supervising architect, who is attached to the Treasury 
department. The signal service weather bureau is a branch of the \Vnr de- 
partment, the coast survey of the Nwvy department. 

1/. ' 



THE CABINET 91 



committees of Congress, especially to committees of the House 
of Representatives. This happens particularly as regards 
taxation, public works, and the management of the Territories, 
for each of which matters there exists a committee in both 
Houses. A cabinet minister formerly took precedence of 
the senators, but they have now established their claim to 
walk before him on public occasions. The point is naturally 
of more importance as regards the wives of the claimants than 
as regards the claimants themselves. 

The respective positions of the President and his ministers 
are, as has been already explained, the reverse of those which 
exist in the constitutional monarchies of Europe. There the 
sovereign is irresponsible and the minister responsible for the 
acts which he does in the sovereign's name. In America 
the President is responsible because the minister is nothing 
more than his servant, bound to obey him, and independent 
of Congress. The minister's acts are therefore legally the 
acts of the President. Nevertheless the minister is also 
responsible and liable to impeachment for offences committed 
in the discharge of his duties. The question whether he is, 
as in England, impeachable for giving bad advice to the head 
of the State has never arisen, but upon the general theory of 
the Constitution it would rather seem that he is not, unless of 
course his bad counsel should amount to a conspiracy with the 
President to commit an impeachable offence. In Erance the 
responsibility of the President's ministers does not in theory 
exclude the responsibility of the President himself, although 
practically it makes a great difference, because he, like the 
English Crown, acts through ministers supported by a ma- 
jority in the Chamber. 

So much for the ministers taken separately. It remains to 
consider how an American Administration works as a whole, 
this being in Europe the most peculiar and significant feature 
of the parliamentary or so-called "cabinet" system. 

In America the Administration does not work as a whole. 
It is not a whole. It is a group of persons, each individually 
dependent on and answerable to the President, but with no 
joint policy, no collective responsibility. 1 



1 In America people usually speak of the President and his ministers as the 
administration," not as the " government," apparently because he and they 



92 THE NATIONAL GOVERNMENT part i 

When the Constitution was established, and George Wash- 
ington chosen first President under it, it was intended that the 
President should be outside and above party, and the method 
of choosing him by electors was contrived with this very view. 
Washington belonged to no party, nor indeed, though diverg- 
ing tendencies were already manifest, had parties yet begun to 
exist. There was therefore no reason why he should not 
select his ministers from all sections of opinion. As he was 
responsible to the nation and not to a majority in Congress, he 
was not bound to choose persons who agreed with the majority 
in Congress. As he, and not the ministry, was responsible for 
executive acts done, he had to consider, not the opinions or 
affiliations of his servants, but their capacity and integrity only. 
Washington chose as secretary of state Thomas Jefferson, 
already famous as the chief draftsman of the Declaration of 
Independence, and as attorney-general another Virginian, 
Edmund Eandolph, both men of extreme democratic leanings, 
disposed to restrict the action of the Federal Government 
within narrow limits. For secretary of the treasury he selected 
Alexander Hamilton of New York, and for secretary of war 
Henry Knox of Massachusetts. Hamilton was by far the 
ablest man among those who soon came to form the Federalist 
party, the party which called for a strong executive, and desired 
to subordinate the States to the central authority. He soon 
became recognized as its leader. Knox was of the same way 
of thinking. Dissensions presently arose between Jefferson 
and Hamilton, ending in open hostility, but Washington 
retained them both as ministers till Jefferson retired in 1794 
and Hamilton in 1795. The second President, John Adams, 
kept on the ministers of his predecessors, being in accord with 
their opinions, for they and he belonged to the now full-grown 
Federalist party. But before he quitted office he had quar- 
relled with most of them, having taken important steps with- 
out their knowledge and against their wishes. Jefferson, the 
third President, was a thorough-going party leader, who natu- 
rally chose his ministers from his own political adherents. Ajs 

are not deemod to govern in the European Benae. The latter expression 
very old in England. Thirty years ago people usually said " the Ministry"' 
when they now say " the Government." in Prance and Germany Ministry is 
the term used, while Qouvernement and Regierung denote the executive qim 
executive. 



chap, ix THE CABINET 93 

all subsequent Presidents have been seated by one or other 
party, all have felt bound to appoint a party cabinet. Their 
party expects it ; and they prefer to be surrounded and advised 
by their own friends. 

So far, an American cabinet resembles a British one. It is 
composed exclusively of members of one party. But now mark 
the differences. The parliamentary system of England and of 
those countries which like Belgium, Italy, and the self-govern- 
ing British colonies, have more or less modelled themselves 
upon England, rests on four principles. 

The head of the executive is irresponsible. Responsibility 
attaches to the cabinet, i.e. to the body of ministers who 
advise him, so that if he errs, it is through their fault ; they 
suffer and he escapes. The ministers cannot allege, as a 
defence for any act of theirs, the command of the Crown. If 
the Crown gives them an order of which they disapprove, they 
ought to resign. 

The ministers sit in the legislature, practically forming in 
England, as has been observed by the most acute of English 
constitutional writers, a committee of the legislature, chosen 
by the majority for the time being. 

The ministers are accountable to the legislature, and must 
resign office 1 as soon as they lose its confidence. 

The ministers are jointly as well as severally liable for their 
acts : i.e. the blame of an act done by any of them falls on the 
whole cabinet, unless one of them chooses to take it entirely on 
himself and retire from office. Their responsibility is collective. 

None of these principles holds true in America. The Presi- 
dent is personally responsible for his acts, not indeed to Con- 
gress, but to the people, by whom he is chosen. No means 
exist of enforcing this responsibility, except by impeachment, 
but as his power lasts for four years only, and is much re- 
stricted, this is no serious evil. He cannot avoid responsibility 
by alleging the advice of his ministers, for he need not follow 
it, and they are bound to obey him or retire. The ministers 
do not sit in Congress. They are not accountable to it, but to 

1 In England and some other countries (e.g. the self-governing British colo- 
nies) they have the alternative of dissolving Parliament, subject to a somewhat 
undefined, but not wholly extinct, right of the Crown or the Governor to 
refuse a dissolution in certain cases. 



94 THE NATIONAL GOVERNMENT pakt i 

the President, their master. It may request their attendance 
before a committee, as it may require the attendance of any 
other witness, but they have no opportunity of expounding and 
justifying to Congress as a whole their own, or rather their 
master's, policy. Hence an adverse vote of Congress does not 
affect their or his position. If they propose to take a step 
which requires money, and Congress refuses the requisite ap- 
propriation, the step cannot be taken. But a dozen votes of 
censure will neither compel them to resign nor oblige the 
President to pause in any line of conduct which is within his 
constitutional rights. This, however strange it may seem to a 
European, is a necessary consequence of the fact that tin- 
President, and by consequence his cabinet, do not derive their 
authority from Congress. Suppose (as befel in 1878-9) a 
Republican President, with a Democratic majority in both 
Houses of Congress. The President, unless of course he is 
convinced that the nation has changed its mind since it elected 
him, is morally bound to follow out the policy which he pro- 
fessed as a candidate, and which the majority of the nation 
must be held in electing him to have approved. That policy 
is, however, opposed to the views of the present majority of 
Congress. They are right to check him as far as they can. 
He is right to follow out his own views and principles in spite 
of them so far as the Constitution and the funds at his disposal 
permit. A deadlock may follow. Hut deadlocks may happen 
under any system, except that of an omnipotent sovereign. In 1 
he a man or an assembly, tie 1 risk of deadlocks bring indeed the 
price which a nation pays lor the safeguard of constitutional 
checks. 

In this state of things one cannot properly talk of the cab- 
inet apart from the President. An American administration 
resembles not so much the cabinet- oi' England and France as 
the group of ministers who surround the Czar or tin 1 Sultan, or 
who executed the bidding ol' a Roman emperor like Constan- 

tine Or Justinian. Such ministers are severally responsible to 
their master, and are severally called in to counsel him, but they 
have not necessarily any relations with one another, nor any 
duty of collective action. So while the President commits 

each department to the minister whom the law provides, and 
may it lie chooses Leave it altogether to that minister, the ex- 



THE CABINET 95 



ecutive acts done are his own acts, by which the country will 
judge him; and still more is his policy as a whole his own 
policy, and not the policy of his ministers taken together. 
The ministers meet in council, but have comparatively little to 
settle when they meet, since they have no parliamentary tac- 
tics to contrive, no bills to prepare, few problems of foreign 
policy to discuss. They are not a government, as Europeans 
understand the term ; they are a group of heads of depart- 
ments, whose chief, though he usually consults them separately, 
often finds it useful to bring together in one room for a talk 
about politics, or to settle some administrative question which 
lies on the borderland between the provinces of two ministers. 
A significant illustration of the contrast between the English 
and American systems may be found in the fact that whereas 
an English king has never (since Queen Anne's time) sat in 
his own cabinet, because if he did he would be deemed account- 
able for its decisions, an American President always does, be- 
cause he is accountable, and really needs advice to help him, 
not to shield him. 1 

The so-called cabinet is unknown to the statutes as well as 
to the Constitution of the United States. So is the English 
cabinet unknown to the law of England. But then the Eng- 
lish cabinet is a part, is, in fact, a committee, though no 
doubt an informal committee, of a body as old as Parliament 
itself, the Privy Council, or Curia Regis. Of the ancient in- 
stitutions of England Avhich reappear in the Constitution of the 
United States, the Privy Council is not one. 2 It may have 
seemed to the Convention of 1787 to be already obsolete. Even 
in England it was then already a belated survival from an earlier 
order of things, and now it lives on only in its committees, 
three of which, the Board of Trade, the Education department, 

1 Another illustration of the contrast may be found in the fact that when 
the head of one of the eight departments is absent from Washington the under 
secretary of the department is often asked to replace him in the cabinet 
council. 

2 A privy council however appears in the original Constitution of Delaware ; 
and there were in many States councils for advising the Governor. When 
James Wilson was proposing that the executive should consist of a single person, 
he was asked whether this person was to have a council, and answered that he 
desired " to have no council which oftener serves to cover than to prevent mal- 
practices." Elliot's Debates, v. 151. So Randolph argued that councillors 
would impair the President's responsibility. (See post, Chapter XLI.) 



96 THE NATIONAL GOVERNMENT part i 

and the Agricultural department, serve as branches of the ad- 
ministration, one, the Judicial Committee, is a law court, and 
one, the Cabinet, is the virtual executive of the nation. The 
framers of the American Constitution saw its unsuitability to 
their conditions. It was nominated, while with them a coun- 
cil must have been elective. Its only effect would have been 
to control the President, but for domestic administration con- 
trol is scarcely needed, because the President has only to exe- 
cute the laws, while in foreign affairs and appointments the 
Senate controls him already. A third body, over and above 
the two Houses of Congress, was in fact superfluous. The 
Senate may appear in some points to resemble the English 
Privy Council of the seventeenth century, because it advises 
the executive ; but there is all the difference in the world be- 
tween being advised by those whom you have yourself chosen 
and those whom election b} r others forces- upon you. So it 
happens that the relations of the Senate and the President art 1 
seldom cordial, much less confidential, even when he and the 
majority of the Senate belong to the same party, because the 
Senate and the President are rival powers jealous of one 
another. 



CHAPTER XII 

THE SENATE : ITS WORKING AND INFLUENCE 

The Americans consider the Senate one of the successes of 
their Constitution, a worthy monument of the wisdom and 
foresight of its founders. Foreign observers have repeated 
this praise, and have perhaps, in their less perfect knowledge, 
sounded it even more loudly. 

The aims with which the Senate was created, the purposes 
it was to fulfil, are set forth, under the form of answers to 
objections, in five letters (lxi.-lxv.), all by Alexander Hamil- 
ton, in the Federalist. 1 These aims were the five following : — 

To conciliate the spirit of independence in the several States, 
by giving each, however small, equal representation with every 
other, however large, in one branch of the national government. 

To create a council qualified, by its moderate size and the 
experience of its members, to advise and check the President 
in the exercise of his powers of appointing to office and con- 
cluding treaties. 

To restrain the impetuosity and fickleness of the popular 
House, and so guard against the effects of gusts of passion or 
sudden changes of opinion in the people. 

To provide a body of men whose greater experience, longer 
term of membership, and comparative independence of popular 
election, would make them an element of stability in the gov- 
ernment of the nation, enabling it to maintain its character in 
the eyes of foreign States, and to preserve a continuity of 
policy at home and abroad. 

To establish a Court proper for the trial of impeachments, a 
remedy deemed necessary to prevent abuse of power by the 
executive. 

1 See also Hamilton's speeches in the New York Convention. — Elliot's 
Debates, ii. p. 301 sqq. 

Ill 



112 THE NATIONAL GOVERNMENT part i 

All of these five objects have been more or less perfectly 
attained ; and the Senate has acquired a position in the gov- 
ernment which Hamilton scarcely ventured to hope for. In 
1788 he wrote : " Against the force of the immediate repre- 
sentatives of the people nothing will be able to maintain even 
the constitutional authority of the Senate, but such a display 
of enlightened policy, and attachment to the public good, as 
will divide with the House of Representatives the affections 
and support of the entire body of the people themselves." 

It may be doubted whether the Senate has excelled the 
House in attachment to the public good ; but it has certainly 
shown greater capacity for managing the public business, and 
has won the respect, if not the affections, of the people, by its 
sustained intellectual power. 

The Federalist did not think it necessary to state, nor have 
Americans generally realized, that this masterpiece of the 
Constitution-makers was in fact a happy accident. No one in 
the Convention of 1787 set out with the idea of such a Senate 
as ultimately emerged from their deliberations. It grew up 
under the hands of the Convention, as the result of the neces- 
sity for reconciling the conflicting demands of the large and 
the small States. The concession of equal representation in 
the Senate induced the small States to accept the principle of 
representation according to population in the House of Rep- 
resentatives ; and a series of compromises between the advo- 
cates of popular power, as embodied in the House, and those 
of monarchical power, as embodied in the President, led to the 
allotment of attributes and functions which have made the 
Senate what it is. When the work which they had almost 
unconsciously perfected was finished, the leaders of the Con- 
vention perceived its excellence, and defended it by arguments 
in which we feel the note of sincere conviction. Yet the con- 
ception they formed of it differed from the reality which has 
been evolved. Although they had created it as a branch of 
the legislature, they thought of it as being first and foremost 
a body with executive functions. And this, at first, it was. 
The traditions of the old Congress of the Confederation, in 
which the delegates of the States voted by States, the still 
earlier traditions of the executive councils, which advised the 
governors of the colonies while still subject to the British 



CHAPTER X 

THE SENATE 

The National Legislature of the United States, called Con- 
gress, consists of two bodies, sufficiently dissimilar in compo- 
sition, powers, and character to require a separate description. 

The Senate consists of two persons from each State, who 
must be inhabitants of that State, and at least thirty years of 
age. They are elected by the legislature of their State for six 
years, and are re-eligible. One-third retire every two years, 
so that the whole body is renewed in a period of six years, the 
old members being thus at any given moment twice as numer- 
ous as the new members elected within the last two years. 
As there are now forty-four States, the number of senators, 
originally twenty-six, is now eighty-eight. This great and 
unforeseen augmentation must be borne in mind when con- 
sidering the purposes for which the Senate was created, for 
some of which a small body is fitter than a large one. As 
there remain only four Territories 1 which can be formed into 
States, the number of senators will not (unless, indeed, existing 
States are divided, or more than one State created out of some 
of the Territories) rise beyond ninety-six. This is of course 
much below the present nominal strength of the English 
House of Lords 2 (about 550), and below that of the French 
Senate (300), and the Prussian Herrenhaus (432). No senator 
can hold any office under the United States. The Vice-Presi- 
dent of the Union is ex officio president of the Senate, but has 
no vote, except a casting vote when the numbers are equally 

1 1 reckon in neither the Indian territory, which lies west of Arkansas, nor 
Alaska, because the former is not likely within the near future, nor the latter 
for a long time to come, to contain a civilized population such as would entitle 
either of them to he formed into States. 

2 At the accession of George III. the House of Lords numbered only 174 
members. 

VOL. I H 97 



98 THE NATIONAL GOVERNMENT part i 

divided. Failing him (if, for instance, lie dies, or falls sick, 
or succeeds to the presidency), the Senate chooses one of its 
number to be president pro tempore. His authority in ques- 
tions of order is very limited, the decision of such questions 
being held to belong to the Senate itself. 1 

The functions of the Senate fall into three classes — legis- 
lative, executive, and judicial. 2 Its legislative function is to 
pass, along with the House of Eepresentatives, bills which 
become Acts of Congress on the assent of the President, or 
even without his consent if passed a second time by a two- 
thirds majority of each House, after he has returned them 
for reconsideration. Its executive functions are : — (a) To 
approve or disapprove the President's nominations of Federal 
officers, including judges, ministers of state, and ambassadors. 
(b) To approve, by a majority of two-thirds of those present, 
of treaties made by the President — i.e. if less than two-thirds 
approve, the treaty falls to the ground. Its judicial function 
is to sit as a court for the trial of impeachments preferred by 
the House of Eepresentatives. 

The most conspicuous, and what was at one time deemed the 
most important feature of the Senate, is that it represents the 
several States of the Union as separate commonwealths, and is 
thus an essential part of the Federal scheme. Every State, be 
it as great as New York or as small as Delaware, sends two 
senators, no more and no less. 3 This arrangement was long 

1 The powers of the Lord Chancellor as Speaker of the English House of 
Lords are much narrower than those of the Speaker in the House of Commons. 
It is worth notice that as the Vice-President is not chosen by the Senate, hut 
by the people, and is not strictly speaking a member of the Senate, bo the Lord 
Chancellor is not chosen to preside by the House of Lords, but by the sovereign, 
and is nqj necessarily a peer. This, however, is merely a coincidence, and not 
the result of a wish to imitate England. 

2 To avoid prolixity, I do not set forth all the details of the constitutional 
powers and duties of the Houses of Congress: these -will be found in the text 
of the Constitution printed in the Appendix. 

8 New York is twice as large as Scotland, and more populous than Scotland. 
Northumberland, and Durham taken together. Delaware is a little smaller 
than Norfolk, with about the population of Bedfordshire. It is therefore as if 
Bedfordshire had in one Bouse of a British legislature as much weigh! as all 
Scotland together with Northumberland and Durham, a state of things nol 
very conformable to democratic theory. Nevada has now a population about 
equal to that of Caithness (45,761), but is as powerful in the Senate as New 

York. This State, which consists of hnrnt-ont mining camps, is really a sort 
of rotten borough lor. and is controlled by. the great "silver men." 



chap, x THE SENATE 99 

resisted by the delegates of the larger States in the Conven- 
tion of 1787, and ultimately adopted because nothing less 
would reassure the smaller States, who feared to be overborne 
by the larger. It is now the provision of the Constitution 
most difficult to change, for " no State can be deprived of its 
equal suffrage in the Senate without its consent," a consent 
most unlikely to be given. There has never, in point of fact, 
been any division of interests or consequent contests between 
the great States and the small ones. 1 But the provision for 
the equal representation of all States had the important result 
of making the slave-holding party, during the thirty years 
which preceded the Civil War, eager to extend the area of 
slavery in order that by creating new Slave States they might 
maintain at least an equality in the Senate, and thereby 
prevent any legislation hostile to slavery. 

The plan of giving representatives to the States as common-, 
wealths has had several useful results. It has provided a 
basis for the Senate unlike that on which the other House of 
Congress is chosen. Every nation which has formed a legisla- 
ture with two houses has experienced the difficulty of devising 
methods of choice sufficiently different to give a distinct char- 
acter to each house. Italy has a Senate composed of persons 
nominated by the Crown. The Prussian House of Lords is 
partly nominated, partly hereditary, partly elective. The 
Spanish senators are partly hereditary, partly official, partly 
elective. In the Germanic Empire, the Federal Council con- 
sists of delegates of the several kingdoms and principalities. 
France appoints her senators by indirect election. In England 
the non-spiritual members of the House of Lords now sit by 
hereditary right; and those who propose to reconstruct that 
ancient body are at their wits' end to discover some" plan by 
which it may be strengthened, and made practically useful, 
without such a direct election as that by which members are 
chosen to the House of Commons. 2 The American plan, which 

1 Hamilton perceived that this would he so ; see his remarks in the Consti- 
tutional Convention of New York in 1788. — Elliot's Debates, p. 213. 

2 Under a statute of 1876, two persons may be appointed by the Crown to 
sit as Lords of Appeal, with the dignity of baron for life. The Scotch and 
Irish peers enjoy hereditary peerages, but only a certain number are elected 
by their fellow peers to sit in the House of Lords, the latter for life, the former 
for each parliament. 



100 THE NATIONAL GOVERNMENT pakt ; 

is older than any of those in use on the European continent, 
is also better, because it is not only simple, but natural, i.e. 
grounded on and consonant with the political conditions of 
America. It produces a body which is both strong in itself and 
different in its collective character from the more popular House. 

It also constitutes, as Hamilton anticipated, a link between 
the State Governments and the National Government. It is a 
part of the latter, but its members derive their title to sit in it 
from their choice by State legislatures. In one respect this 
connection is no unmixed benefit, for it has helped to make the 
national parties powerful, and their strife intense, in these 
last-named bodies. Every vote in the Senate is so important 
to the great parties that they are forced to struggle for ascen- 
dency in each of the State legislatures by whom the senators 
are elected. The method of choice in these bodies was formerly 
left to be fixed by the laws of each State, but as this gave rise 
to much uncertainty and intrigue, a Federal statute was passed 
in 1866 providing that each House of a State legislature shall 
first vote separately for the election of a Federal senator, and 
that if the choice of both Houses shall not fall on the same 
person, both Houses in joint meeting shall proceed to a joint 
vote, a majority of each House being present. Even under 
this arrangement, a senatorial election often leads to long and 
bitter struggles ; the minority endeavouring to prevent a choice, 
and so keep the seat vacant. 1 

The method of choosing the Senate by indirect election has 
excited the admiration of foreign critics, who have found in it 
a sole and sufficient cause of the excellence of the Senate as a 
legislative and executive authority. I shall presently inquire 
whether the critics are right. Meantime it is worth observing 
that the election of senators has in substance almost ceased 
to be indirect. They are still nominally chosen, as under the 
letter of the Constitution they must be chosen, by the State 
legislatures. The state legislature means, of course, the party 
for the time dominant, which holds a party meeting (caucus) 
and decides on the candidate, who is thereupon elected, the 
party going solid tor whomsoever the majority has approved. 
Now the determination of the caucus has very often been 

1 See as to this statute and the evils of the presenl system a thoughtful 

art i, •!(• in the Atlantic M<>nth/>/ for August, 1*91, l'v Mr. \Y. P. Carrison. 



THE SENATE 101 



arranged beforehand by the party managers. Sometimes when 
a vacancy in a senatorship approaches, the aspirants for it pnt 
themselves before the people of the State. Their names are 
discussed at the State party convention held for the nomina- 
tion of party candidates for State offices, and a vote in that 
convention decides who shall be the party nominee for the 
senatorship. This vote binds the party within and without 
the State legislature, and at the election of members for the 
State legislature, which immediately precedes the occurrence 
of the senatorial vacancy, candidates for seats in that legis- 
lature are frequently expected to declare for which aspirant 
to the senatorship they will, if elected, give their votes. 1 
Sometimes the aspirant, who is of course a leading State 
politician, goes on the stump in the interest of those candi- 
dates for the legislature who are prepared to support him, 
and urges his own claims while urging theirs. 2 I do not say 
that things have, in most States, gone so far as to make 
the choice by the legislature of some particular person as 
senator a foregone conclusion when the legislature has been 
elected. Circumstances may change; compromises may be 
necessary ; still, it is now generally true that a reduced free- 
dom of choice remains with the legislature. The people, or 
rather those wire-pullers who manage the people and act in 
their name, have usually settled the matter at the election of 
the State legislature. So hard is it to make any scheme of 
indirect election work according to its original design ; so hard 
is it to keep even a written and rigid constitution from bend- 
ing and warping under the actual forces of politics. 3 

1 The Constitution of the State of Nebraska (1875) allows the electors in 
voting for members of the State legislature to " express by ballot their prefer- 
ence for some person for the office of U.S. senator. The votes cast for such 
candidates shall be canvassed and returned in the same manner as for State 
officers." This is an attempt to evade and by a side wind defeat the provision 
of the Federal Constitution which vests the choice in the legislature. 

2 The famous struggle of Mr. Douglas and Mr. Lincoln for the Illinois sena- 
torship in 1858 was conducted in a stump campaign. , 

3 A proposal frequently made of late years (but never yet carried in either 
House of Congress) to amend the Federal Constitution by taking the election 
of senators away from the legislature in order to vest it in the people of each 
State is approved by some judicious publicists, who think that bad candidates 
will have less chance with the party at large and the people than they now 
have in bodies apt to be controlled by a knot of party managers. A nominat- 
ing convention is no doubt as bad a body as a State legislature, but nominations 



102 THE NATIONAL GOVERNMENT part i 

Members of the Senate vote as individuals, that is to say, the 
vote a senator gives is his own and not that of his State. It 
was otherwise in the Congress of the old Confederation before 
1789; it is otherwise in the present Federal Council of the 
German Empire, in which each State votes as a whole, though 
the number of her votes is proportioned to her population. 
Accordingly, in the American Senate, the two senators from a 
State may belong to opposite parties ; and this often happens 
in the case of senators from States in which the two great 
parties are pretty equally balanced, and the majority oscillates 
between them. 1 As the State legislatures sit for short terms 
(the larger of the two houses usually for two years only), a 
senator has during the greater part of his six years' term to look 
for re-election not to the present but to a future State legis- 
lature, 2 and this circumstance tends to give him somewhat more 
independence. 

The length of the senatorial term was one of the provisions 
of the Constitution which were most warmly attacked and 
defended in 1788. A six years' tenure, it was urged, would 
turn the senators into dangerous aristocrats, forgetful of the 
legislature which, had appointed them ; and some went so far as 
to demand that the legislature of a State should have the right 
to recall its senators." Experience has shown that the term is 
by no means too long; and its length is one among the causes 
which have made it easier for senators than for members of the 
House to procure re-election, a result which, though it offends 
the doctrinaires of democracy, has worked well tor the coun- 
try. Senators from the smaller States are more frequently 

made lor popular elections will at least be made publicly, whereas now candi- 
dates for election by a legislature may be nominated secretly; and though 
there maybe as much demagogism as at present, there will probably be less 
corruption. 

1 it was arranged from the beginning of the Federal Government that the 
two senatorships from the same State should never be vacant at the same time. 

- ll a vacancy occurs in a senatoiship at a time when the State legislature 
is not Bitting, the executive of the State is empowered to till it up until the next 
meeting <>r the State legislature. This power is specially important If the 

Vacancy occurs at a time when parties are equally divided in the Senate. 

b This was recommended by a Pennsylvanian Convention, which met after 

the adoption of the Constitution to surest amendments. See Elliot's /' 

11. p. 646. A State legislature sometimes passes resolutions instructing its 

senators to \ote in a particular way. but the senators are of course in no way 

bound to regard such instructions, 



THE SENATE 103 



re-elected than those from the larger, because in the small States 
the competition of ambitious men is less keen, politics less 
changeful, the people perhaps more steadily attached to a man 
whom they have once honoured with their confidence. The sen- 
ator from such a State generally finds it more easy to maintain 
his influence over his own legislature ; not to add that if the State 
should be amenable to the power of wealth, his wealth will 
tell far more than it could in a large State. Yet no small 
State was ever more controlled by one man than the great State 
of Pennsylvania has been by its "bosses " during the last thirty 
years. The average age of the Senate is less than might be 
expected. Three-fourths of its members are under sixty. The 
importance of the State he represents makes no great difference 
to the influence which a senator enjoys ; this depends on his 
talents, experience, and character ; and as the small State sen- 
ators have often the advantage of long service and a safe seat, 
they are often among the most influential. 

The Senate resembles the Upper Houses of Europe, and 
differs from those of the British colonies, and of most of the 
States of the Union, in being a permanent body. It is an undy- 
ing body, with an existence continuous since its first creation ; 
and though it changes, it does not change all at once, as do 
assemblies created by a single popular election, but undergoes 
an unceasing process of gradual renewal, like a lake into 
which streams bring fresh water to replace that which the 
issuing river carries out. As Harrington said of the Venetian 
Senate, "being always changing, it is forever the same." This 
provision was designed to give the Senate that permanency of 
composition which might qualify it to conduct or control the 
foreign policy of the nation. An incidental and more valuable 
result has been the creation of a set of 1 traditions and a corpo- 
rate spirit which have tended to form habits of dignity and self- 
respect. The new senators, being comparatively few, are readily 
assimilated ; and though the balance of power shifts from one 
party to another according to the predominance in the State 
legislatures of one or other party, it shifts more slowly than in 
bodies directly chosen all at once, and a policy is therefore less 
apt to be suddenly reversed. 

The legislative powers of the Senate being, except in one 
point, the same as those of the House of Representatives, will 



104 THE NATIONAL GOVERNMENT i -art i 

be described later. That one point is a restriction as regards 
money bills. On the ground that it is only by the direct rep- 
resentatives of the people that taxes ought to be levied, and in 
obvious imitation of the venerable English doctrine, which had 
already found a place in several State constitutions, the Consti- 
tution (Art. i. § 7) provides that " All bills for raising revenue 
shall originate in the House of Representatives, but the Senate 
may propose or concur with amendments, as on other bills." In 
practice, while the House strictly guards its right of origination, 
the Senate largely exerts its power of amendment, and wrangles 
with the House over taxes, and still more keenly over appropria- 
tions. Almost every session ends with a dispute, a conference, 
a compromise. Among the rules (a few extracts from which, 
touching some noteworthy points, will be found in the Appen- 
dix) there is none providing for a closure of debate (although 
an attempt to introduce such a rule was made by Henry Clay, 
and renewed in 1890), nor any limiting the length either of a 
debate or of a speech. The Senate is proud of having con- 
ducted its business without the aid of such regulations, and 
this has been due, not merely to the small size of the assembly, 
but to the sense of its dignity which has usually pervaded its 
members, and to the power which the opinion of the whole body 
has exercised on each. Where every man knows his colleagues 
intimately, each, if he has a character to lose, stands in awe of 
the others, and has so strong a sense of his own interest in 
maintaining the moral authority of the Chamber, that lie is slow- 
to resort to methods which might lower it in public estimation. 
Till recently, systematic obstruction, or, as it is called in 
America, "filibustering," familiar to the House, was almost 
unknown in the calmer air of the Senate. When it was applied 
some years ago by the Democratic senators to stop a bill to 
which they strongly objected, their conduct was not disapproved 
by the country, because the whole parly, a minority very little 
smaller than the Republican majority, supported it. and people 
believed that nothing but some strong reason would have 
induced the whole party so to aid. Accordingly the majority 
\ ielded. 

The absence of a closure rule is a fact oi great political 
moment. In L890 it prevented the passage of a bill, already 
accepted by the House, i'ov placing Federal elections under the 



THE SENATE 105 



control of Federal authorities, a measure which would have 
powerfully affected the Southern States, and might possibly 
have raised civil commotions. 

Divisions are taken, not by separating the senators into 
lobbies and counting them, as in the British Parliament, but 
by calling the names of senators alphabetically. The Constitu- 
tion provides that one-fifth of those present may demand that 
the Yeas and Nays be entered in the journal. Every senator 
answers to his name with Aye or No. He may, however, ask 
the leave of the Senate to abstain from voting ; and if he is 
paired, he states, when his name is called, that he has paired 
with such and such another senator, and is thereupon excused. 

When the Senate goes into executive session, the galleries 
are cleared and the doors closed ; and the obligation of secrecy 
is supposed to be enforced by the penalty of expulsion to 
which a senator, disclosing confidential proceedings, makes 
himself liable. Practically, however, newspaper men find 
little difficulty in ascertaining what passes in secret session. 1 
The threatened punishment has never been inflicted, and 
occasions often arise when senators feel it to be desirable that 
the public should know what their colleagues have been doing. 
There has been for some time past a movement within the Sen- 
ate against maintaining secrecy, particularly with regard to the 
confirming of nominations to office ; and there is also a belief 
in the country that publicity would make for purity. But 
while some of the black sheep of the Senate love darkness 
because their works are evil, other members of undoubted 
respectability defend the present system because they think it 
supports the power and dignity of their body. 

1 Secrecy is said to be better observed in tbe case of discussions on treaties 
than where appointments are in question. Some years ago a Western news- 
paper published an account of what took place in a secret session. A commit- 
tee appointed to inquire into the matter questioned every senator. Each swore 
that he had not divulged the proceedings, and the newspaper people also swore 
that their information did not come from any senator. Nothing could be 
ascertained, and nobody was punished. 



CHAPTER XI 

THE SENATE AS AN EXECUTIVE AND JUDICIAL BODY 

The Senate is not only a legislative but also an executive 
Chamber ; in fact in its early days the executive functions 
seem to have been thought the more important ; and Ham- 
ilton went so far as to speak of the national executive 
authority as divided between two branches, the President and 
the Senate. These executive functions are two, the power of 
approving treaties, and that of confirming nominations to 
office submitted by the President. 

To what has already been said regarding the functions of 
the President and Senate as regards treaties (see above, Chap- 
ter VI.) I need only add that the Senate through its right of 
confirming or rejecting engagements with foreign powers, 
secures a general control over foreign policy ; though it must 
be remembered that many of the most important acts done in 
this sphere (as for instance the movement of troops or ships) 
are purely executive acts, not falling under this control. It is 
in the discretion of the President whether he will communi- 
cate current negotiations to it and take its advice upon 
them, or will say nothing till he lavs a completed treaty 
before it. One or other course is from time to time followed, 
according to the nature of the case, or the degree of friendli- 
ness existing between the President and the majority of the 
Senate. But in general, the President's best policy is to keep 
the leaders of the senatorial majority, and in particular the 
committee on Foreign Relations, informed of the progress of 
any pending negotiation. Be thus feels the pulse of the 
Senate, which, like other assemblies, has a collective self- 
esteem leading it to strive for all the information and power it 
can secure, and while keeping it in good humour, can foresee 
what kind of arrangement it may be induced to sanction. The 

106 



chap, xi SENATE : EXECUTIVE AND JUDICIAL BODY 107 

right of going into secret session enables the whole Senate to 
consider despatches communicated by the President ; and the 
more important ones, having first been submitted to the For- 
eign Relations committee, are thus occasionally discussed 
without the disadvantage of publicity. Of course no momen- 
tous secret can be long kept, even by the committee, according 
to the proverb in the Elder Edda — " Tell one man thy secret, 
but not two ; if three know, the world knows." 

This control of foreign policy by the Senate goes far to 
meet the difficulties which every free government finds in 
dealing with foreign Powers. If each step to be taken must 
be previously submitted to the governing assembly, the nation 
is forced to show its whole hand, and precious opportunities 
of winning an ally or striking a bargain may be lost. If on 
the other hand the executive is permitted to conduct nego- 
tiations in secret, there is always the risk, either that the as- 
sembly may disavow what has been done, a risk which makes 
foreign states legitimately suspicious and unwilling to nego- 
tiate, or that the nation may have to ratify, because it feels 
bound in honour by the act of its executive agents, arrange- 
ments which its judgment condemns. The frequent participa- 
tion of the Senate in negotiations diminishes these difficulties, 
because it apprises the executive of what the judgment of 
the ratifying body is likely to be, and it commits that body 
by advance. The necessity of ratification by the Senate in 
order to give effect to a treaty, enables the country to retire 
from a doubtful bargain, though in a way which other Powers 
find disagreeable, as England did when the Senate rejected the 
Reverdy Johnson treaty of 1869. European statesmen may 
ask what becomes under such a system of the boldness and 
promptitude so often needed to effect a successful coup . in for- 
eign policy, or how a consistent attitude can be maintained if 
there is in the chairman of the Foreign Relations committee a 
sort of second foreign secretary. The answer is that America 
is not Europe. The problems which the Foreign Office of the 
United States has to deal with are far fewer and usually far 
simpler than those of the Old World. The republic keeps 
consistently to her own side of the Atlantic ; nor is it the 
least of the merits of the system of senatorial control that it 
has tended, by discouraging the executive from schemes which 



108 THE NATIONAL GOVERNMENT part i 

may prove resultless, to diminish the taste for foreign enter- 
prises, and to save the country from being entangled with al- 
liances, protectorates, responsibilities of all sorts beyond its 
own frontiers. It is the- easier for the Americans to practise 
this reserve because they need no alliances, standing unassail- 
able in their own hemisphere. The circumstances of England, 
with her powerful European neighbours her Indian Empire, 
and her colonies scattered over the world, are widely different. 
Yet different as the circumstances of England are, the day may 
come when in England the question of limiting the at present 
wide discretion of the executive in foreign affairs will have to 
be dealt with ; 1 and the example of the American Senate will 
then deserve and receive careful study. 

The Senate may and occasionally does amend a treaty, and 
return it amended to the President. There is nothing to pre- 
vent it from proposing a draft treaty to him, or asking him to 
prepare one, but this is not the practice. For ratification a 
vote of two-thirds of the senators present is required. This 
gives great power to a vexatious minority, and increases the 
danger, evidenced by several incidents in the history of the 
Union, that the Senate or a faction in it may deal with foreign 
policy in a narrow, sectional, electioneering spirit. When the 
interest of any group of States is, or is supposed to be, against 
the making of a given treaty, that treaty may be defeated by 
the senators from those States. They tell the other senators 
of their own party that the prospects of the party in the dis- 
trict of the country whence they come will be improved if the 
treaty is rejected and a bold aggressive line is taken in further 
negotiations. Some of these senators, who care more for the 
party than for justice or the common interests of the country, 
rally to the cry, and all the more gladly if their party is op- 
posed to the President in power, because in defeating the 
treaty they humiliate his administration. Tims the treaty 
may be rejected, and the settlement of the question at issue 
indefinitely postponed. It may be thought that a party acting 
in this vexatious way will suffer in public esteem. This hap- 

1 Parliament of course may and sometimes does Interfere; but the majority 

Which supports the ministry of the day usually forhears to press the Foreign 
Office for Information which it Is declared to he undesirable to furnish. 

In 1886 a resolution was all but carried in the House of Commons, desiring 
all treaties to be laid before Parliament for its approval before being finally 

concluded. 



chap, xi SENATE : EXECUTIVE AND JUDICIAL BODY 109 

pens in extreme cases; but the public are usually so indif- 
ferent to foreign affairs, and so little skilled in judging of 
them, that offences of the kind described may be committed 
with practical impunity. It is harder to fix responsibility on 
a body of senators than on the executive; and whereas the 
executive has usually an interest in settling diplomatic troubles, 
whose continuance it finds annoying, the Senate has no such 
interest, but is willing to keep them open so long as some 
political advantage can be sucked out of them. The habit of 
using foreign policy for electioneering purposes is not confined 
to America. We have seen it in England, we have seen it in 
France, we have seen it even in monarchical Germany. But 
in America the treaty-confirming power of the Senate opens 
a particularly easy and tempting door to such practices. 

The other executive function of the Senate, that of con- 
firming nominations submitted by the President, has been 
discussed in the chapter on the powers of that officer. It is 
there explained how senators have used their right of confir- 
mation to secure for themselves a huge mass of Federal 
patronage, and how by means of this right, a majority hostile to 
the President can thwart and annoy him. Sometimes he ought 
to be thwarted : yet the protection which the Senate provides 
against abuses of his nominating power is far from complete. 

Does the control of the Senate operate to prevent abuses of 
patronage by the President ? To some extent it does, yet less 
completely than could be wished. When the majority belongs 
to the same party as the President, appointments are usually 
arranged, or to use a familiar expression, " squared," between 
them, with a view primarily to party interests. When the 
majority is opposed to the President, they are tempted to agree 
to his worst appointments, because such appointments discredit 
him and his party with the country, and become a theme of 
hostile comment in the next electioneering campaign. As the 
initiative is his, it is the nominating President, and not the 
confirming Senate, whom public opinion will condemn. These 
things being so, it may be doubted whether this executive func- 
tion of the Senate is now a valuable part of the Constitution. 
It was designed to prevent the President from making himself 
a tyrant by filling the great offices with his accomplices or tools. 
That danger has passed away, if it ever existed ; and Congress 
has other means of muzzling an ambitious chief magistrate. 



110 THE NATIONAL GOVERNMENT part i 

The more fully responsibility for appointments can be concen- 
trated upon him, and the fewer the secret influences to which 
he is exposed, the better will his appointments be. On the 
other hand, it must be acbnitted that the participation of the 
Senate causes in practice less friction and delay than might 
have been expected from a dual control. The appointments to 
the cabinet offices are confirmed as a matter of course. Those 
of diplomatic officers are seldom rejected. "Little tiffs" are 
frequent when the senatorial majority is in opposition to the 
executive, but the machinery, if it does not work smoothly, 
works well enough to carry on the ordinary business of the 
country, though a European observer, surprised that a demo- 
cratic country allows such important business to be transacted 
with closed doors, is inclined to agree with the view lately 
advanced in the Senate that nominations ought to be discussed 
publicly rather than in secret executive session. 

The judicial function of the Senate is to sit as a High Court 
for the trial of persons impeached by the House of Representa- 
tives. The senators "are on oath or affirmation," and a vote 
of two-thirds of those present is needed for a conviction. Of 
the process, as affecting the President, I have spoken in 
Chapter V. It is applicable to other officials. Besides Presi- 
dent Johnson, six persons in all have been impeached, viz.: — 

Four Federal judges, of whom two were acquitted, and two 
convicted, one for violence and drunkenness, the other for 
having joined the Secessionists of 1861. Impeachment is the 
only means by which a Federal judge can be got rid of. 

One senator, who was acquitted for want of jurisdiction, the 
Senate deciding that a senatorship is not a ••civil office"' within 
the meaning of Art. iii. § 4 of the Constitution. 

One minister, a secretary of war. win) resigned before the 
impeachment Avas actually preferred, and escaped on the 
ground that, being a private person he was not impeachable. 

Rarely as this method of proceeding lias been employed, it 
could not be dispensed with; and it is better that the Senate 
should try cases in which a, political element is usually pres- 
ent, than that the impartiality of the Supreme court should be 

exposed to the criticism it would have to bear, did political 

questions come before it. Many senators are or have been 
lawyers of eminence, so thai so tar as legal knowledge 
they are competent members of a court. 



chap, xii SENATE : WORKING AND INFLUENCE 113 

Crown, clung about the Senate and affected the minds of the 
senators. It was a small body, originally of twenty-six, even 
in 1810 of thirty-four members only, a body not ill fitted for 
executive work. Its members, regarding themselves as a sort 
of congress of ambassadors from their respective States, were 
accustomed to refer for advice and instructions each to his 
State legislature. So late as 1828, a senator after arguing 
strongly against a measure declared that he would neverthe- 
less vote for it, because he believed his State to be in its 
favour. 1 For the first five years of its existence, the Senate 
sat with closed doors, occupying itself chiefly with the confi- 
dential business of appointments and treaties, and conferring 
in private with the ministers of the President. Not till 1816 
did it create, in imitation of the House, those Standing Com- 
mittees which the experience of the House had shown to be, 
in bodies where the executive ministers do not sit, the neces- 
sary organs for dealing with legislative business. Its present 
character as a legislative body, not less active and powerful 
than the other branch of Congress, is the result of a long 
process of evolution, a process possible (as will be more fully 
explained hereafter) even under the rigid Constitution of the 
United States, because the language of the sections which 
define the competence of the Senate is wide and general. But 
in gaining legislative authority, it has not lost its executive 
functions, although those which relate to treaties are largely 
exercised on the advice of the standing Committee on For- 
eign Relations. And as respects these executive functions 
it stands alone in the world. No European state, no British 
colony, entrusts to an elective assembly that direct participa- 
tion in executive business which the Senate enjoys. 

What is meant by saying that the Senate has proved a 
success ? 

It has succeeded by effecting that chief object of the Fathers 
of the Constitution, the creation of a centre of gravity in the 
government, an authority able to correct and check on the one 
hand the " democratic recklessness " of the House, on the 

1 A similar statement was made in 1883 by a senator from Arkansas in justi- 
fying his vote for a bill he disapproved. But the fact that from early days 
downwards the two senators from a State might (and did) vote against one 
another shows that the true view of the senator is that he represents the 
people and not the government of his State. 

VOL. I I 



114 THE NATIONAL GOVERNMENT taut i 

other the " monarchical ambition " of the President. Placed 
between the two, it is necessarily the rival and often the oppo- 
nent of both. The House can accomplish nothing without its 
concurrence. The President can be checkmated by its resist- 
ance. These are, so to speak, negative or prohibitive suc- 
cesses. It has achieved less in the way of positive work, 
whether of initiating good legislation or of improving the 
measures which the House sends it. But the whole scheme 
of the American Constitution tends to put stability above 
activity, to sacrifice the productive energies of the bodies it 
creates to their power of resisting changes in the general 
fabric of the government. The Senate has succeeded in mak- 
ing itself eminent and respected. It has drawn the best talent 
of the nation, so far as that talent flows to politics, into its 
body, has established an intellectual supremacy, has furnished 
a vantage ground from which men of ability may speak with 
authority to their fellow-citizens. 

To what causes are these successes to be ascribed ? Hamil- 
ton assumed that the Senate would be weaker than the House 
of Representatives, because it would not so directly spring 
from, speak for, be looked to by, the people. This was a 
natural view, especially as the analogy between the position 
of the Senate towards the House of Representatives in Amer- 
ica, and that of the House of Lords towards the House of 
Commons in Great Britain, an analogy constantly present to 
the men of 1787, seemed to suggest that the larger and more 
popular chamber must dwarf and overpower the smaller one. 
But the Senate has proved no less strong, and more intellect- 
ually influential, than its sister House of Congress. The 
analogy was unsound, because the British House of Lords is 
hereditary and the Senate representative. In these days no 
hereditary assembly, be its members ever so able, ever so 
wealthy, ever so socially powerful, can speak with the au- 
thority which belongs to those who speak tor the people. 
Mirabeau's famous words in the Salle des Menus at Versailles. 
"We are here by the will of the people, and nothing but 
bayonets shall send us hence. " express the whole current of mod- 
ern feeling. Now the Senate, albeit not chosen by direct pop- 
ular election, does represent the people; and what it may lose 
through not standing in Immediate contact with the ma>scs. 



chap, xii SENATE : WORKING AND INFLUENCE 115 

it gains in representing such ancient and powerful common- 
wealths as the States. A senator from New York or Penn- 
sylvania speaks for, and is responsible to, millions of men. 
No wonder he has an authority beyond that of the long- 
descended nobles of Prussia, or the peers of Britain whose 
possessions stretch over whole counties. 

This is the first reason for the strength of the Senate, as 
compared with the upper chambers of other countries. It is 
built on a wide and solid foundation of choice by the people 
and consequent responsibility to them. A second cause is to 
be found in its small size. A small body educates its members 
better than a large one, because each member has more to do, 
sooner masters the business not only of his committee but of 
the whole body, feels a livelier sense of the significance of his 
own action in bringing about collective action. There is less 
disposition to abuse the freedom of debate. Party spirit may 
be as intense as in great assemblies, yet it is mitigated by the 
wish to keep on friendly terms with those whom, however 
much you may dislike them, you have constantly to meet, and 
by the feeling of a common interest in sustaining the author- 
ity of the body. A senator soon gets to know each of his 
colleagues — they were originally only twenty-five — and what 
each of them thinks of him ; he becomes sensitive to their opin- 
ion ; he is less inclined to pose before them, however he may 
pose before the public. Thus the Senate formed, in its child- 
hood, better habits in discussing and transacting its business 
than would have been formed by a large assembly ; and these 
habits its maturer age retains. Its comparative permanence 
has also worked for good. Six years, which seem a short 
term in Europe, are in America a long term when compared 
with the two years for which the House of Representatives 
and the Assemblies of nearly all the States are elected, long 
also when compared with the swiftness of change in American 
politics. A senator has the opportunity of thoroughly learn- 
ing his work, and of proving that he has learnt it. He be- 
comes slightly more independent of his constituency, which in 
America, where politicians catch at every passing breeze of 
opinion, is a clear gain. He is relieved a little, though only a 
little, of the duty of going on the stump in his State, and 
maintaining his influence among local politicians there. 



116 THE NATIONAL GOVERNMENT part i 

The smallness and the permanence of the Senate have 
however another important influence on its character. They 
contribute to one main cause of its success, the superior 
intellectual quality of its members. Every European who has 
described it, has dwelt upon the capacity of those who compose 
it, and most have followed Tocqueville in attributing this 
capacity to the method of double election. The choice of 
senators by the State legislature is supposed (but I think 
erroneously) to have proved a better means than direct choice 
by the people of discovering and selecting the fittest men. I 
have already remarked that the legislatures now do little more 
than register and formally complete a choice already made by 
the party managers, and perhaps ratified in the party conven- 
tion, and am inclined to believe that direct popular election 
would work better. But apart from this recent development, 
and reviewing the whole hundred years' history of the Senate, 
the true explanation of its capacity is to be found in the 
superior attraction which it has for the ablest and most ambi- 
tious men. A senator has more power than a member of the 
House, more dignity, a longer term of service, a more in- 
dependent position. Hence every Federal politician aims at 
a senatorship, and looks on the place of Eepresentative as a 
stepping-stone to what may fairly be called an Upper House, 
because it is the House tf'o .which Representatives seek to 
mount. It is no more surprising that the average capacity of 
the Senate should surpass that of the House, than that the 
average cabinet minister of Europe should be abler than the 
average member of the legislature. 

What is more, the Senate so trains its members as to 
improve their political efficiency. Several years ( 1' st rvice in 
a small body, with important and delicate executive work, are 
worth twice as many years of jostling in the crowd of repre- 
sentatives at the other end of the Capitol. If the Senate 
not find the man who enters it already superior to the average 
of Federal politicians, it makes him superior. But natural 
selection, as has been said, usually seats upon its benches the 
best ability of the country that has flowed into political life, 
and would do so no less were the election in form a direct one 
by the people at the polls. 

Most of the leading men of the hist sixty years have sat in 



chap, xii SENATE: WORKING AND INFLUENCE 117 

the Senate, and in it were delivered most of the famous 
speeches which illumine, though too rarely, the wearisome 
debates over State rights and slavery from 1825 till 1860. 
One of these debates, that in-.the beginning of 1830, which 
called forth Daniel Webster's majestic defence of the Consti- 
tution, was long called par excellence " the great debate in the 
Senate." 1 

Of the 76 senators who sat in the forty-eighth Congress 
(1883-85) 31 had sat in the other House of Congress, and 
49 had served in State legislatures. 2 In the fifty-second Con- 
gress (1891-93) out of 88 senators, 34 had sat in the House 
of Eepresentatives, and 50 in State legislatures. Many had 
been judges or State governors ; many had sat in State con- 
ventions. Nearly all had held some public function. A man 
must have had considerable experience of affairs, and of 
human nature in its less engaging aspects, before he enters 
this august conclave. But experience is not all gain. Prac- 
tice makes perfect in evil-doing no less than in well-doing. 
The habits of local politics and of work in the House of Eep- 
resentatives by which the senators have been trained, while 
they develop shrewdness and quickness in all characters, tell 
injuriously on characters of the meaner sort, leaving men's 
views narrow, and giving them a taste as well as a talent for 
intrigue. 

The chamber in which the Senate meets is rectangular, but 
the part occupied by the seats is semicircular in form, the 
Vice-President of the United States, who acts as presiding 
officer, having his chair on a marble dais, slightly raised, in 
the centre of the chord, with the senators all turned towards 
him as they sit in curving rows, each in an arm-chair, with a 
desk in front of it. The floor is about as large as the whole 
superficial area of the British House of Commons, but as there 
are great galleries on all four sides, running back over the 

1 In those days the Senate sat in that smaller chamber which is now occu- 
pied by the Supreme Federal Court. 

2 I cannot be sure of the absolute actual accuracy of these figures, which I 
have compiled from the Congressional Directory, because some senators do 
not set forth the whole of their political career. The proportion of senators 
who have previously been members of the House of Representatives was 
larger among the senators from the older States both in 1884 and in 1892 than 
it is in the West. 



118 THE NATIONAL GOVERNMENT part i 

lobbies, the upper part of the chamber and its total air-space 
much exceeds that of the English house. One of these gal- 
leries is appropriated to the President of the United States ; 
the others to ladies, diplomatic representatives, the press, and 
the public. Behind the senatorial chairs and desks there is 
an open space into which strangers can be brought by the 
senators, who sit and talk on the sofas there placed. Members 
of foreign legislatures are allowed access to this outer " floor 
of the Senate." There is, especially when the galleries are 
empty, a slight echo in the room, which obliges most speakers 
to strain their voices. Two or three pictures on the walls 
somewhat relieve the cold tone of the chamber, with its mar- 
ble platform and sides unpierced by windows, for the light 
enters through glass compartments in the ceiling. 

A senator always addresses the Chair " Mr. President," and 
refers to other senators by their States, "The senator from 
Ohio," " The senator from Tennessee." When two senators rise 
at the same moment, the Chair calls on one, indicating him by 
his State, " The senator from Minnesota has the floor." l Sena- 
tors of the Democratic party apparently always have sat on the 
right of the chair, Republican senators on the left ; but, as 
already explained, the parties do not face one another. The 
impression which the place makes on a visitor is one of busi- 
ness-like gravity, a gravity which though plain is dignified. 
It has the air not so much of a popular assembly as of a diplo- 
matic congress. The English House of Lords, with its fretted 
roof and windows rich with the figures of departed kings, its 
majestic throne, its Lord Chancellor in his wig on the woolsack, 
its benches of lawn-sleeved bishops, its bar where the Commons 
throng at a great debate, is not only more gorgeons and pictur- 
esque in externals, but appeals far more powerfully to the histo- 
rical imagination, for it seems to carry the middle ages down 
into the modern world. The Senate is modern, severe, and prac- 
tical. So, too, few debates in the Senate rise to the level of the 

1 A late President of the Senate was In the habit of distinguishing the two 

senators from the State o{ Arkansas, by calling Oil one as the senator f 01 
"Arkansas" (pronounced as written, with accent on the penult), and the 
other as the senator for " Arkansaw." with the second syllable short. As 

Europeans often ask which is the correct pronunciation, 1 may say that both 
are in common use. But the legislature of Arkansas has lately by a "joint 
resolution" declared "Arkansaw '* to be right. 



chap, xii SENATE : WORKING AND INFLUENCE 119 

best debates in the English chamber. But the Senate seldom * 
wears that air of listless vacuity and superannuated indolence 
which the House of Lords presents on all but a few nights of 
every session. The faces are keen and forcible, as of men who 
have learned to know the world, and have much to do in it ; 
the place seems consecrated to great affairs. 

As might be expected from the small number of the audi- 
ence, as well as from its character, discussions in the Senate 
are apt to be sensible and practical. Speeches, are shorter and 
less fervid than those made in the House of Representatives, 
for the larger an assembly the more prone is it to declamation. 
The least useful debates are those on show-days, when a series 
of set discourses are delivered on some prominent question. 
Each senator brings down and fires off in the air, a carefully- 
prepared oration, which may have little bearing on what has 
gone before. In fact the speeches are made not to convince 
the assembly, — no one dreams of that, — but to keep a man's 
opinions before the public and sustain his fame. The ques- 
tion at issue is sure to have been already settled, either in 
a committee or in a " caucus " of the party which com- 
mands the majority, so that these long and sonorous harangues 
are mere rhetorical thunder addressed to the nation out- 
side. 

The Senate now contains many men of great wealth. Some, 
an increasing number, are senators because they are rich; a 
few are rich because they are senators ; while in the remaining 
cases the same talents which have won success in law or com- 
merce have brought their possessor to the top in politics also. 
The great majority are or have been lawyers ; some regularly 
practise before the Supreme Court. Complaints are occasion- 
ally levelled against the aristocratic tendencies which wealth 
is supposed to have bred, and sarcastic references are made to 
the sumptuous residences which senators have built on the 
new avenues of Washington. While admitting that there is 
more sympathy for the capitalist class among these rich men 
than there would be in a Senate of poor men, I must add that 
the Senate is far from being a class body like the upper houses 
of England or Prussia or Spain or Denmark. It is substan- 
tially representative, by its composition as well as by legal 
delegation, of all parts of American society; it is far too 



120 THE NATIONAL GOVERNMENT part i 

dependent, and far too sensible that it is dependent, upon 
public opinion, to dream of legislating in the interest of the 
rich. The senators, however, indulge some social pretensions. 
They are the nearest approach to an official aristocracy that 
has yet been seen in America. They and their wives are 
allowed precedence at private entertainments, as well as on 
public occasions, over members of the House, and of course 
over private citizens. Jefferson might turn in his grave if he 
knew of such an attempt to introduce European distinctions of 
rank into his democracy ; yet as the office is temporary, and 
the rank vanishes with the office, these pretensions are harm- 
less ; it is only the universal social equality of the country 
that makes them noteworthy. Apart from such petty advan- 
tages, the position of a senator, who can count on re-election, 
is the most desirable in the political world of America. It 
gives as much power and influence as a man need desire. It 
secures for him the ear of the public. It is more permanent 
than the presidency or a cabinet office, requires less labour, 
involves less vexation, though still great vexation, by importu- 
nate office-seekers. 

European writers on America have been too much inclined 
to idealize the Senate. Admiring its structure and function, 
they have assumed that the actors must be worthy of their 
parts. They have been encouraged in this tendency by the 
language of many Americans. As the Komans were never 
tired of repeating that the ambassador of Pyrrhus had called 
the Eoman senate an assembly of kings, so Americans of re- 
finement, who are ashamed of the turbulent House of Repre- 
sentatives, have been wont to talk of the Senate as a sort of 
Olympian dwelling-place of statesmen and sages. It is nothing 
of the kind. It is a company of shrewd and vigorous men who 
have fought their way to the front by the ordinary methods of 
American politics, and on many of whom the battle lias left its 
stains. There are abundant opportunities for intrigue in the 
Senate, because its most important business is done in the 
secrecy of committee rooms or of executive session; and many 
senators are intriguers. There are opportunities for misusing 
senatorial powers. Scandals have sometimes arisen from the 
practice of employing as counsel before the Supreme Court, 
senators whose intluence has contributed to the appointment 



chap, xii SENATE : WORKING AND INFLUENCE 121 

or confirmation of the judges. 1 There are opportunities for 
corruption and blackmailing, of which unscrupulous men are 
well known to take advantage. Such men are fortunately few ; 
but considering how demoralized are the legislatures of a few 
States, their presence must be looked for ; and the rest of the 
Senate, however it may blush for them, is obliged to work with 
them and to treat them as equals. The contagion of political 
vice is nowhere so swiftly potent as in legislative bodies, be- 
cause you cannot taboo a man who has got a vote. You may 
loathe him personally, but he is the people's choice. He has 
a right to share in the government of the country ; you are 
grateful to him when he saves you on a critical division ; you 
discover that "he is not such a bad fellow when one knows 
-him " ; people remark that he gives good dinners, or has an 
agreeable wife ; and so it goes on till falsehood and knavery 
are covered under the cloak of party loyalty. 

As respects ability, the Senate cannot be profitably compared 
with the English House of Lords, because that assembly con- 
sists of some fifteen eminent and as many ordinary men attend- 
ing regularly, with a multitude of undistinguished persons who 
rarely appear, and take no share in the deliberations. Setting 
the Senate beside the House of Commons, the average natural 
capacity of its eighty-eight members is not above that of the 
eighty-eight best men in the English House. There is more 
variety of talent in the latter, and a greater breadth of culture. 
On the other hand, the Senate excels in legal knowledge as well 
as in practical shrewdness. The House of Commons contains 
more men who could give a good address on a literary or histor- 
ical subject; the Senate, together with some eminent lawyers, 
has more who could either deliver a rousing popular harangue 
or manage the business of a great trading company, these being 
the forms of capacity commonest among congressional poli- 
ticians. An acute American observer says (writing in 1885): 

" The Senate is just what the mode of its election and the conditions of 
public life in this country make it. Its members are chosen from the ranks 
of active politicians, in accordance with a law of natural selection to which 

1 In 1886, a bill was brought in forbidding members of either House of Con- 
gress to appear in the Federal courts as counsel for any railroad company or 
other corporation which might, in respect of its having received land grants, 
be affected by Federal legislation. 



122 THE NATIONAL GOVERNMENT part i 

the State legislatures are commonly obedient ; and it is probable that it 
contains, consequently, the best men that our system calls into politics. 
If these best men are not good, it is because our system of government 
fails to attract better men by its prizes, not because the country affords or 
could afford no finer material. The Senate is in fact, of course, nothing 
more than a part, though a considerable part, of the public service ; and 
if the general conditions of that service be such as to starve statesmen and 
foster demagogues, the Senate itself will be full of the latter kind, simply 
because there are no others available." * 

This judgment is severe, but not unjust. Whether the sena- 
tors of to-day are inferior in ability and integrity to those 
of fifty, thirty, twenty years ago, is not easy to determine. 
But it must be admitted, however regretfully, that they are 
less independent, less respected by the people, less influential 
with the people, than were their predecessors ; and their 
wealth, which has made them fear the reproach of wanting 
popular sympathies, may count for something in this decline. 

The place which the Senate holds in the constitutional S}*s- 
tem of America cannot be fully appreciated till the remaining 
parts of that system have been described. This much, how- 
ever, may be claimed for it, that it has been and is still, though 
perhaps less than formerly, a steadying and moderating power. 
One cannot say in the language of European politics that it 
has represented aristocratic principles, or anti-popular princi- 
ples, or even conservative principles. Each of the great his- 
toric parties has in turn commanded a majority in it, and the 
difference between their strength has during the last decade 
been but slight. On none of the great issues that have 
divided the nation has the Senate been, for any long period, 
decidedly opposed to the other House of Congress. It showed 
no more capacity than the House for grappling with the prob- 
lems of slavery extension. It was scarcely less ready than the 
House to strain the Constitution by supporting Lincoln in the 
exercise of the so-called war powers, or subsequently by cut- 
ting down presidential authority in the struggle between Con- 
gress and Andrew Johnson, though it refused to convict him 
when impeached by the House. All the fluctuations of public 
opinion tell upon it, nor dees it venture, any more than the 
House, to confront a popular impulse, because it is, equally 
with the House, subject to the control of the great parties, 
1 Woodrow Wilson. Congressional Government, p. 194, 



chap, xii SENATE : WORKING AND INFLUENCE 123 

which seek to use while they obey the dominant sentiment of 
the hour. 

But the fluctuations of opinion tell on it less energetically 
than on the House of Representatives. They reach it more 
slowly and gradually, owing to the system which renews it by 
one-third every second year, so that it sometimes happens that 
before the tide has risen to the top of the flood in the Senate it 
has already begun to ebb in the country. The Senate has been a 
stouter bulwark against agitation, not merely because a majority 
of the senators have always four years of membership before 
them, within which period public feeling may change, but also 
because the senators have been individually stronger men than 
the representatives. They are less democratic, not in opinion, 
but in temper, because they are more self-confident, because 
they have more to lose, because experience has taught them 
how fleeting a thing popular sentiment is, and how useful 
a thing continuity in policy is. The Senate has therefore 
usually kept its head better than the House of Representatives. 
It has expressed more adequately the judgment, as contrasted 
with the emotion, of the nation. In this sense it does consti- 
tute a "check and balance" in the Federal government. Of 
the three great functions which the Fathers of the Constitution 
meant it to perform, the first, that of securing the rights of 
the smaller States, is no longer important ; while the second, 
that of advising or controlling the Executive in appointments 
as well as in treaties, has given rise to evils almost commensu- 
rate with its benefits. But the third duty is still discharged, 
for "the propensity of a single and numerous assembly to yield 
to the impulse of sudden and violent passions " is frequently, 
though not invariably, restrained. 



CHAPTER XIII 

THE HOUSE OF REPRESENTATIVES 

The House of Representatives, usually called for shortness 
the House, represents the nation on the basis of population, as 
the Senate represents the States. 

But even in the composition of the House the States play an 
important part. The Constitution provides 1 that "representa- 
tives and direct taxes shall be apportioned among the several 
States according to their respective numbers," and under this 
provision Congress allots so many members of the House to 
each State in proportion to its population at the last preceding 
decennial census, leaving the State to determine the districts 
within its own area for and by which the members shall be 
chosen. These districts are now equal or nearly equal in size ; 
but in laying them out there is ample scope for the process 
called "gerrymandering,'' 2 which the dominating party in a 

1 Constitution, Art. i. § 2, par. 3; cf. Amendment xiv. § 2. 

2 So called from Elbridge Gerry, a leading Democratic politician in Massa- 
chusetts (a member of the Constitutional Con vein ion of ITS", and in 1812 
elected Vice-President of the United States), who when Massachusetts was 
being re-districted contrived a scheme which gave one of the districts a shape 
like that of a lizard. Smart, the well-known artist, entering the room of an 
editor who had a map of the new districts hanging on the wall over h> 
observed, " Why, this districl looks like a salamander," and pnt in the claws 
and eyes of the creature with his pencil. "Say rather a Gerrymander," 
replied the editor; and the name stuck. The aim of gerrymandering, of 
course, is so to lay out the one-membered districts as to secure in the greatest 
possible number of them a majority lor the party which conducts the opera- 
tion. This is done sometimes by throwing the greatesl possible number of 
hostile \otcrs into a district winch is anyhow certain to he hostile, sometimes 

by adding to a district where parties arc equally divided some place in which 
the majority of friendly voters is Bufficienl to turn the scale. There is a 
district in Mississippi (the so-called Sloe String district) 600 miles long by 40 
broad, and another in Pennsylvania resembling a dumb-bell. South Carolina 
furnishes some beautiful recent examples. And in Missouri a district has 

been contrived longer, if measured along it- windings, than the state Itself, 
into winch as large a number as possible of the negro voters have been thrown. 

191 



chap, xin THE HOUSE OF REPRESENTATIVES 125 

State rarely fails to apply for its own advantage. Where a 
State legislature has failed to redistribute the State into con- 
gressional districts, after the State has received an increase of 
representatives, the additional member or members are elected 
by the voters of the whole State on a general ticket, and are 
called "representatives at large." Kecently one State (Maine) 
elected all its representatives on this plan, while another (Kan- 
sas) elected three by districts and four by general ticket. Each 
district, of course, lies wholly within the limits of one State. 
When a seat becomes vacant the governor of the State issues a 
writ for a new election, and when a member desires to resign 
his seat he does so by letter to the governor. 

The original House which met in 1789 contained only sixty- 
five members, the idea being that there should be one member 
for every 30,000 persons. As population grew and new States 
were added, the number of members was increased. Originally 
Congress fixed the ratio of members to population, and the 
House accordingly grew; but latterly, fearing a too rapid 
increase, it has fixed the number of members with no regard 
for any precise ratio of members to population. At present 
(September 1892) the total number is 332, but under a statute 
of 1891 it will in the next Congress rise to 356, being, according 
to the census of 1890, one member to about 174,000 souls. Six 
States, Delaware, Idaho, Montana, Nevada, N. Dakota, Wyo- 
ming, have under this Act one representative each ; eight have 
two each ; while New York has thirty-four, and Pennsylvania 
thirty. Besides these full members there are also four Terri- 
torial delegates, one from each of the Territories, regions in 
the West enjoying a species of self-government, but not yet 
formed into States. These delegates sit and speak, but have no 
right to vote, being unrecognized by the Constitution. They 
are, in fact, merely persons whom the House under a statute 
admits to its floor and permits to address it. 

The quorum of the House, as of the Senate, is one-half of the 
total number. 'Till the Fifty-first Congress the custom had been 
to treat as absent all members who did not answer to their 
names on a roll-call, but in 1890, one party persistently refusing 
to answer in order to prevent the transaction of business, the 
Speaker asserted the right of counting for the purposes of a 
quorum all whom he saw physically present. A rule was then 



126 THE NATIONAL GOVERNMENT part i 

passed directing that he should so count, but in the Fifty- 
second Congress this rule was dropped. 

The electoral franchise on which the House is elected is for 
each State the same as that by which the members of the more 
numerous branch of the State legislature are chosen. Originally 
franchises varied much in different States ; and this was a prin- 
cipal reason why the Convention of 1787 left the matter to the 
States to settle : now what is practically manhood suffrage pre- 
vails everywhere. A State, however, has a right of limiting 
the suffrage as it pleases, and many States do exclude persons 
convicted of crime, paupers, illiterates, etc. By the fifteenth 
amendment to the Constitution (passed in 1870) "the right of 
citizens of the United States to vote shall not be denied or 
abridged by any State on account of race, colour, or previous 
condition of servitude," while by the fourteenth amendment 
(passed in 1868) "the basis of representation in any State is 
reduced in respect of any male citizens excluded from the suf- 
frage, save for participation in rebellion or other crimes.'' Each 
State has therefore a strong motive for keeping its suffrage 
wide, but the fact remains that the franchise by which the 
Federal legislature is chosen may differ vastly, and does in 
some small points actually differ in different parts of the 
Union. 1 

Members are elected for two years, and the election always 
takes place in the even years, 1892, 1894, and so forth. Thus 
the election of every second Congress coincides with that of a 
President; and admirers of the Constitution find in this ar- 
rangement another of their favourite " checks," because while 
it gives the incoming President a Congress presumably, though 
by no means necessarily, of the same political complexion as 
his own, it enables the people within two years to express 
their approval or disapproval of his conduct by Bending up 
another House of Representatives which may support or op- 
pose the policy he has followed. The House does not in the 
regular course of things meet until a year has elapsed from 
the time when it has been elected, though the President may 
convoke it sooner, i.e. a House elected in November 1892 will 

1 Rhode Island retained till isss a Bmall property qualification for electors, 

and in sonic States payment of a poll tax is made a condition to the exercise 
of electoral rights. Sec Chapter XI.. on State Legislatures. 



chap, xiii THE HOUSE OF REPRESENTATIVES 127 

not meet till December 1893, unless the President summons it 
in " extraordinary session " some time after March 1893, when 
the previous House expires. This summons has been issued 
ten times only since 1789 ; and has so often brought ill luck 
to the summoning President that a sort of superstition against 
it has now grown up. 1 The question is often mooted whether 
a new Congress ought not by law to meet within six months 
after its election, for there are inconveniences in keeping an 
elected House unorganized and Speakerless for a twelvemonth. 
But the country is not so fond of Congress as to desire more 
of it. It is a singular result of the present arrangement that 
the old House continues to sit for nearly four months after the 
members of the new House have been elected, and that a meas- 
ure may still be pressed in the expiring Congress, against which 
the country has virtually pronounced at the general elections 
already held for its successor. In the Fifty-first Congress 
the House voted more than 500 millions of dollars in its appro- 
priation bills after a new Congress had been elected, and when 
therefore it had in strictness no longer any constituents. 

The expense of an election varies greatly from district to 
district. Sometimes, especially in great cities where illegiti- 
mate expenditure is more frequent and less detectible than in 
rural districts, it rises to a sum of $10,000 (£2000) or more : 
sometimes it is trifling. 2 No estimate of the average can be 
formed, because no returns of congressional election expenses 
are required by law ; but as a rule a seat costs less than one 
for a county division does in England. 3 A candidate, unless 
very wealthy, is not expected to pay the whole expense out of 
his own pocket, but is aided often by the local contributions 
of his friends, sometimes by a subvention from the election 
funds of the party in the State. All the official expenses, such 
as for clerks, polling booths, etc., are paid by the public. Al- 
though bribery is not rare, comparatively few elections are 

1 This ill luck is supposed (says Mr. Blaine in his Twenty Years in Con- 
gress) to attach especially to May sessions, which reminds one of the supersti- 
tion against May marriages mentioned by John Knox apropos of the marriage 
of Mary Queen of Scots and Darnley. 

2 As to bribery, see Vol. II. Chap. LXVII. 

3 In England the fixing a maximum, proportioned to the number of electors, 
has greatly reduced the cost of elections. The average expenditure, all kinds 
of expense included, seems, in county constituencies, to be from £1100 to £1200, 
and in boroughs from £400 to £500. 



128 THE NATIONAL GOVERNMENT part i 

impeached, for the difficulty of proof is increased by the cir- 
cumstance that the House, which is the investigating and 
deciding authority, does not meet till a year after the election. 
As a member is elected for two years only, and the investiga- 
tion would probably drag on during the whole of the first 
session, it is scarcely worth while to dispute the return for 
the sake of turning him out for the second session. 1 In some 
States, drinking places are closed on the election day. 

Among the members of the House there are few young men, 
and still fewer old men. The immense majority are between 
forty and sixty. Lawyers abound, including in that term 
both those who in Great Britain are called barristers or ad- 
vocates, and those who are called attorneys, there being in 
America no distinction between these two branches of the 
profession. An analysis of the House in the fiftieth Congress 
showed that two hundred and three members, or nearly two- 
thirds of the whole number, had been trained or had practised 
as lawyers, while in the fifty-second the number was two hun- 
dred. Of course many of these had practically dropped law 
as a business, and given themselves wholly to politics. Next 
in number come the men engaged in manufactures or com- 
merce, in agriculture, or banking, or journalism, but no one of 
these occupations counted as many as forty members. 2 Min- 
isters of religion are very rare ; there were, however, two in 
the fifty-second Congress. No military or naval officer, and 
no person in the civil service of the United States, can sit. 
Scarcely any of the great railway men go into Congress, a fact 
of much significance when one considers that they are really 
the most powerful people in the country ; and of the numerous 
lawyer members very few are leaders of the bar in their re- 
spective States. The reason is the same in both cases. Resi- 
dence in Washington makes practice at the bar of any of the 
great cities impossible, and men in lucrative practice would 

1 It has been recently proposed to transfer to a judicial tribunal the trial of 

election eases, whieh are now usually decided OH party lines. 

- In the fifty-second Congress the Dumber of persons stating themselves to 
be engaged in commerce was 49, in agriculture 39. In the forty-eighth Con- 
gress there were 205 lawyers. 1 take these numbers from the Congreational 

Directory, which l have carefully analyzed, bu1 as some members do not state 
their occupations, the analysis Is not quite complete, and there are probably 
more lawyers tlian the number I bave given. 



chap, xin THE HOUSE OF REPRESENTATIVES 129 

not generally sacrifice their profession in order to sit in the 
House, while railway managers or financiers are too much en- 
grossed by their business to be able to undertake the duties of 
a member. The absence of railway men by no means implies 
the absence of railway influence, for it is as easy for a company 
to influence legislation from without Congress as from within. 

Most members, including nearly all western men, have re- 
ceived their early education in the common schools, but about 
one half of the whole number have also graduated in a uni- 
versity or college. This does not necessarily mean what it 
would mean in Europe, for some of the smaller colleges are no 
better than English grammar schools and not as good as Ger- 
man gymnasia. It is noticeable that in the accounts of their 
career which members prepare for the pages of the Congres- 
sional Directory, they usually dAvell upon the fact of their 
graduation, or state that they have "received an academic 
education." x A good many, but apparently not the majority, 
have served in the legislature of their own State. Compara- 
tively few are wealthy, and few are very poor, while scarcely 
any were at the time of their election working men. Of course 
no one could be a working man while he sits, for he would 
have no time to spare for his trade, and the salary would more 
than meet his wants. Nothing prevents an artisan from being 
returned to Congress, but there seems little disposition among 
the working classes to send one of themselves. 

A member of the House enjoys the title of Honourable, 
which is given to him not merely within the House (as in 
England), but in the world at large, as for instance in the 
addresses of his letters. As he shares it with members of 
State senates, all the higher officials, both Federal and State, 
and judges, the distinction is not deemed a high one. 

The House has no share in the executive functions of the 
Senate, nothing to do with confirming appointments or approv- 
ing treaties. On the other hand, it has the exclusive right of 
initiating revenue bills and of impeaching officials, features 
borrowed, through the State Constitutions, from the English 

1 In the Congressional Directory for the fiftieth Congress I find 209 mem- 
bers claiming to have received a "collegiate" or "academic" education, 84 
owning to an elementary or common school education, and the remainder 
silent on the subject. In the fifty-second the numbers were 188 collegiate and 
68 elementary. 

VOL. I K 



130 THE NATIONAL GOVERNMENT part i 

House of Commons, and of choosing a President in case there 
should be no absolute majority of presidential electors for any- 
one candidate. This very important power it exercised in 
1801 and 1825. 1 

Setting extraordinary sessions aside, every Congress has two 
sessions, distinguished as the First or Long and the Second or 
Short. The long session begins in the fall of the year after 
the election of a Congress, and continues, with a recess at 
Christmas, till the July or August following. The short 
session begins in the December after the July adjournment, 
and lasts till the 4th of March following. The whole working 
life of a House is thus from ten to twelve months. Bills do 
not, as in the English Parliament, expire at the end of each 
session ; they run on from the long session to the short one. 
All however that have not been passed when the fatal 4th 
March arrives perish forthwith, for the session being fixed by 
statute cannot be extended at pleasure. 2 There is conse- 
quently a terrible scramble to get business pushed through in 
the last week or two of a Congress. 

The House usually meets at noon, and sits till four or six 
o'clock, though towards the close of a session these hours are 
lengthened. Occasionally when obstruction occurs, or when at 
the very end of a session messages are going backwards and 
forwards between the House, the Senate, and the President, it 
sits all night long. 

The usages and rules of procedure of the House, which differ 
in many respects from those of the Senate, are too numerous to 
be described here. I will advert only to a few points of special 
interest, choosing those which illustrate American political 
ideas or bring out the points of likeness and unlikeness be- 
tween Congress and the English Parliament. 

An oath or affirmation of fidelity to the Constitution of the 
United States is (as prescribed by the Constitution) taken 
by all members ; 3 also by the clerk, the sergeant-at-arms, the 
door-keeper, and the post-master. 

1 See above, Chapter V. 

2 Senate i>nis also expire at the end of a Congress. 

A proposal was recently made, hut has not yet heen adopted, to extend the 
session till April and have the President inaugurated then. 

8 The oath is administered by the Speaker, and in the form following: " i 

do solemnly swear (or affirm) that I will support the Constitution of the 



chap, xin THE HOUSE OF REPRESENTATIVES 131 

The sergeant-at-arms is the treasurer of the House, and pays 
to each member his salary and mileage (travelling expenses). 
He has the custody of the mace, and the duty of keeping order, 
which in extreme cases he performs by carrying the mace into 
a throng of disorderly members. This symbol of authority, 
which (as in the House of Commons) is moved from its place 
when the House goes into committee, consists of the Roman 
fasces, in ebony, bound with silver bands in the middle and at 
the ends, each rod ending in a spear head, at the other end a 
globe of silver, and on the globe a silver eagle ready for flight. 
English precedent suggests the mace, but as it could not be 
surmounted by a crown, Koine has prescribed its design. 

The proceedings each day begin with prayers, which are con- 
ducted by a chaplain who is appointed by the House, not (as 
in England) by the Speaker, and who may, of course, be 
selected from any religious denomination. Lots are drawn 
for seats at the beginning of the session, each member select- 
ing the place he pleases according as his turn arrives. Al- 
though the Democrats are to the Speaker's right hand, mem- 
bers cannot, owing to the arrangement of the chairs, sit in 
masses palpably divided according to party, a circumstance 
which deprives invective of much of its dramatic effect. One 
cannot, as in England, point the finger of scorn at "hon. gen- 
tlemen opposite." Every member is required to remain un- 
covered in the House. 

A member addresses the Speaker and the Speaker only, and 
refers to another member not by name but as the " gentleman 
from Pennsylvania," or as the case may be, without any par- 
ticular indication of the district which the person referred to 
represents. As there are twenty-eight gentlemen from Penn- 
sylvania, and the descriptives used in the English House of 
Commons (learned, gallant, right honourable) are not in use, 
facilities for distinguishing the member intended are not per- 
fect. A member usually speaks from his seat, but may speak 

United States against all enemies, foreign and domestic ; that I will bear true 
faith and allegiance to the same ; that I take this obligation freely without 
any mental reservation or purpose of evasion, and that I will well and faith- 
fully discharge the duties of the office on which I am about to enter, so help 
me God." "Allegiance" to a legal instrument would have seemed an odd 
expression to those ages in which the notion of allegiance arose ; yet it fairly 
conveys the idea that obedience is due to the will of the people, which has 
taken tangible and permanent shape in the document they have enacted. 



132 THE NATIONAL GOVERNMENT part i 

from the clerk's desk or from a spot close to the Speaker's 
chair. A rule (often disregarded) forbids any one to pass be- 
tween the Speaker and the member speaking, a curious bit of 
adherence to English usage. 

Divisions were originally (rule of 17th April 1789) taken 
by going to the right and left of the chair, according to the old 
practice of the English House of Commons. 1 This having been 
found inconvenient, a resolution of 9th June 1789 established 
the present practice, whereby members rise in their seats and 
are counted in the first instance by the Speaker, but if he is in 
doubt, or if a count be required by one-fifth of those present 
(which cannot be less than one-tenth of the whole House), 
then by two tellers named by the Speaker, between whom, as 
they stand in the middle gangway, members pass. When a 
call of yeas and nays is so demanded, the clerk calls the full 
roll of the House, and each member answers aye or no to his 
name, or says " no vote." When the whole roll has been called, 
it is called over a second time to let those vote who have not 
voted in the first call. Members may now change their votes. 
Those who have entered the House after their names were 
passed on the second call cannot vote, but often take the 
opportunity of rising to say that they would, if then present 
in the House, have voted for (or against) the motion. All 
this is set forth in the Congressional Record, which also con- 
tains a list of the members not voting and of the pairs. 

A process which consumes so much time, for it sometimes 
takes an hour to call through the three hundred and thirty-two 
names, is an obvious and effective engine of obstruction. It is 
frequently so used, for it can be demanded not only on ques- 
tions of substance, but on motions to adjourn. This is a rule 
which the House cannot alter, for it rests on an express 
provision of the Constitution, Art, i. § 6. 

No one may speak more than once to the same question, 
unless he be the mover of the motion pending, in which case 
he is permitted to reply after every member choosing to speak 
has spoken. This rule is however frequently broken. 

1 It was not until 1836 thai the present system of recording the names of 
members who vote by making them pass through lobbies was introduced at 
Westminster — a significant result of the Reform Act of 1832. Till then one 
party had remained in the House while the other retired into the Lobby, and 
only the numbers were recorded. 



chap, xin THE HOUSE OF REPRESENTATIVES 133 

Speeches are limited to one hour, subject to a power to 
extend this time by unanimous consent, and may, in committee 
of the whole House, be limited to five minutes. So far as I 
could learn, this hour rule works very well, and does not tend 
to bring speeches up to that length as a regular thing. A 
member is at liberty to give part of his time to other members, 
and this is in practice constantly done. The member speaking 
will say : " I yield the floor to the gentleman from Ohio for 
five minutes," and so on. Thus a member who has once 
secured the floor has a large control of the debate. 

The great remedy against prolix or obstructive debate is the 
so-called previous question, which is moved in the form, " Shall 
the main question be now put ? " and when ordered closes 
forthwith all debate, and brings the House to a direct vote on 
that main question. On the motion for the putting of the 
main question no debate is allowed ; but it does not destroy 
the right of the member "reporting the measure under con- 
sideration" from a committee, to wind up the discussion by 
his reply. This closure of the debate may be moved by any 
member without the need of leave from the Speaker, and 
requires only a bare majority of those present. When directed 
by the House to be applied in committee, for it cannot be 
moved after the House has gone into committee, it has the 
effect of securing five minutes to the mover of any amendment, 
and five minutes to the member who first " obtains the floor " 
(gets the chance of speaking) in opposition to it, permitting 
no one else to speak. A member in proposing a resolution or 
motion usually asks at the same time for the previous question 
upon it, so as to prevent it from being talked out. 

Closure by previous question, first established in 1811, is 
in daily use, and is considered so essential to the progress of 
business that I never found any member or official willing 
to dispense with it. Even the senators, who object to its 
introduction into their own much smaller chamber, agree that 
it must exist in a large body like the House. That is is not 
much abused is attributed to the fear of displeasing the people, 
and to the sentiment within the House itself in favour of full 
and fair discussion, which sometimes induces the majority to 
refuse the previous question when demanded by one of their 
own party, or on behalf of a motion which they are as a whole 



134 THE NATIONAL GOVERNMENT part i 

supporting. " No one/' I was assured, " who is bond fide dis- 
cussing a subject in a sensible way, would be stopped by the 
application of the previous question. On the other hand we 
should never get even urgent bills through without it." 

Notwithstanding this powerful engine for expediting busi- 
ness, obstruction, or, as it is called in America, filibustering, 
is by no means unknown. It is usually practised by making 
repeated motions for the adjournment of a debate, or for 
"taking a recess" (suspending the sitting), or for calling the 
yeas and nays. Between one such motion and another some 
business must intervene, but as the making of a speech is 
"business," there is no difficulty in complying with this require- 
ment. No speaking is permitted on these obstructive motions, 
yet by them time may be wasted for many continuous hours, 
and if the obstructing minority is a strong one, it generally 
succeeds, if not in defeating a measure, yet in extorting a 
compromise. It must be remembered that owing to the pro- 
vision of the Constitution above mentioned, the House is in 
this matter not sovereign even over its own procedure. That 
rules are not adopted, as they might be, which would go 
further to extinguish filibustering, is due partly to this provi- 
sion, partly to the notion that it is prudent to leave some 
means open by which a minority can make itself disagreeable, 
and to the belief that adequate checks exist on any gross abuse 
of such means. 1 These checks are two. One is the fact that 
filibustering usually fails unless conducted by nearly the whole 
of the party which happens to be in a minority, and that so 
large a section of the House will not be at the trouble of join- 
ing in it unless upon some really serious question. Some few- 
years ago, seventeen or eighteen members tried to obstruct 
systematically a measure they objected to, but their number 
proved insufficient, and the attempt failed. But at an earlier 
date, during the Reconstruction troubles which followed the 
war, the opposition of the solid Democratic party, then in a 
minority, succeeded in defeating a bill for placing live of the 
southern States under military government. The other check 
is found in the fear el' popular disapproval. If the nation 

1 in L890a rule was passed empowering the Speaker to ivfus<> to pat any 
motion which he mighl deem to he of a dilatory nature, but the Fifty-Second 
Congress gave this power only for one class of eases. 



chap, xin THE HOUSE OF REPRESENTATIVES 135 

sees public business stopped and necessary legislation delayed 
by factious obstruction, it will visit its displeasure both upon 
the filibustering leaders individually, and on the whole of the 
party compromised. However hot party spirit may be, there 
is always a margin of moderate men in both parties whom the 
unjustifiable use of legally permissible modes of opposition 
will alienate. Since such men can make themselves felt at 
the polls when the next election arrives, respect for their 
opinion cools the passion of congressional politicians. Thus 
the general feeling is that as the power of filibustering is in 
extreme cases a safeguard against abuses of the system of 
closure by " previous question," so the good sense of the com- 
munity is in its turn a safeguard against abuses of the oppor- 
tunities which the rules still leave open. One ex-Speaker, 
who had had large experience in leading both a majority and 
a minority of the House, observed to me that he thought the 
rules, taken all in all, as near perfection as any rules could be. 
This savours of official optimism. We all know the attach- 
ment which those who have grown old in working a system 
show to its faults as well as to its merits. Still, true is it 
that congressmen generally complain less of the procedure 
under which they live, and which seems to an English 
observer tyrannical, than do members of the English House of 
Commons of the less rigid methods of their own ancient and 
famous body. I know no better instance of the self-control 
and good humour of Americans than the way in which the 
minority in the House generally submit to the despotism of 
the majority, consoling themselves with the reflection that it 
is all according to the rules of the game, and that their turn 
will come in due course. To use the power of closing debate 
as stringently at Westminster as it is used at Washington 
would revolutionize the life of the House of Commons. But 
the House of Eepresentatives is an assembly of a very differ- 
ent nature. Like the House of Commons it is a legislating, 
if hardly to be deemed a governing, body. But it is not a 
debating body. It rules through and by its committees, in 
which discussion is unchecked by any closing power ; and the 
whole House does little more than register by its votes the 
conclusions which the committees submit. One subject alone, 
the subject of revenue, that is to say, taxation and appropria- 



136 THE NATIONAL GOVERNMENT part i 

tion,. receives genuine discussion by the House at large. And 
although the power of limiting debate is often applied to 
expedite such business, it is seldom applied till opportunity 
has been given for the expression of all relevant views. 

The rules regarding the procedure in committee of the whole 
House are in the main similar to those of the British House of 
Commons ; but the chairman of such a committee is not (as 
usually in England) a permanent chairman of Ways and 
Means, but a person nominated by the Speaker on each occa- 
sion. A rule, not duly observed, forbids any member to speak 
twice to any question, until every member desiring to speak 
shall have spoken. 1 

The House has a power of going into secret session whenever 
confidential communications are received from the President, 
or a member informs it that he has communications of a secret 
nature to make. But this power, though employed in early 
days, is now in disuse. Every word spoken is reported by 
official stenographers and published in the Congressional 
Record, and the huge galleries are never cleared. 

The number of bills brought into the House every year is 
very large, averaging over 10,000. In the thirty-seventh Con- 
gress (1861-63) the total number of bills introduced was 1026, 
viz.: — 613 House bills, and 433 Senate bills. In the forty- 
sixth it had risen to 9481, of which 7257 were House bills. 
2224 Senate bills, showing that the increase has been much 
larger in the House than in the Senate. In the fifty-first Con- 
gress (1889-91) the number rose still further, viz. to 19,646 
(including joint resolutions), of which 14,328 were introduced 
in the House, 5318 in the Senate.- In the British House of 
Commons the total niunber of bills introduced was. in the 
session of 1885, 481, of which 202 were public and 279 private 
bills, while in the session of 1892 the number of public bills 
had risen to 335 (20 of which had come from the Lords), be- 
sides 80 provisional order bills. America is. of course, a far 
larger country, but the Legislative competence iA Congress is 
incomparably smaller than that of the British Parliament, 

1 Proceed tags in Committee ol the Whole may be expedited by limiting (by 

a vote of the House) discussion in Committee to a certain fixed period. 

- or these, '-"-'01 passed both Houses, and 2171 were approved by the Presi- 
dent. 



chap, xni THE HOUSE OE REPRESENTATIVES 137 

seeing that the chief part of the field both of public bill and 
private bill legislation belongs in America to the several States. 
By far the larger number of bills in Congress are what would 
be called in England "private " or " local and personal " bills, - 
i.e. they establish no general rule of law but are directed to 
particular cases. Such are the numerous bills for satisfying 
persons with claims against the Federal Government, and for 
giving and restoring pensions to individuals alleged to have 
served in the Northern armies during the War of Secession. 
It is only to a very small extent that bills can attempt to deal 
with ordinary private law, since nearly the whole of that topic 
belongs to State legislation. I need scarcely say that the pro- 
portion of bills that pass to bills that fail is a very small one, 
not one-thirtieth. 1 As in England so even more in America, 
bills are lost less by direct rejection than by failing to reach 
their third reading, a mode of extinction which the good-nature 
of the House, or the unwillingness of its members to administer 
snubs to one another, would prefer to direct rejection, even 
were not the want of time a sufficient excuse to the committees 
for failing to report them. One is told in Washington that few 
bills are brought in with a view to being passed. They are 
presented in order to gratify some particular persons or places, 
and it is well understood in the House that they must not be 
taken seriously. Sometimes a less pardonable motive exists. 
The great commercial companies, and especially the railroad 
companies, are often through their land grants and otherwise 
brought into relations with the Eederal Government. Bills are 
presented in Congress which purport to withdraw some of the 
privileges of these companies, or to establish or favour rival 
enterprises, but whose real object is to levy blackmail on these 
wealthy bodies, since it is often cheaper for a company to buy 
oif its enemy than to defeat him either by the illegitimate 
influence of the lobby, or by the strength, of its case in open 
combat. Several great corporations have thus to maintain aJ 
permanent staff at Washington for the sake of resisting legis- 

1 In the British Parliamentary session of 1890-91, 154 public bills (out of 
403 introduced) became law, of which 54 were Government bills, 75 "pro- 
visional order " bills, only 25 bills of private members. The number of public 
bills introduced is increasing in England, though not so rapidly as in America, 
but the number of private members' bills that are passed does not increase, 
recent changes in parliamentary procedure having reduced their chances. 



138 THE NATIONAL GOVERNMENT part » 

lative attacks upon them, some merely extortionate, some in- 
tended to win local popularity. 

The title and attributions of the Speaker of the House are 
.taken from his famous English original. But the character of 
the office has greatly altered from that original. The note of 
the Speaker of the British House of Commons is his impar- 
tiality. He has indeed been chosen by a party, because a ma- 
jority means in England a party. But on his way from his 
place on the benches to the Chair he is expected to shake off 
and leave behind all party ties and sympathies. Once invested 
with the wig and gown of office he has no longer any political 
opinions, and must administer exactly the same treatment to 
his political friends and to those who have been hitherto his 
opponents, to the oldest or most powerful minister and to the 
youngest or least popular member. His duties are limited to 
the enforcement of the rules and generally to the maintenance 
of order and decorum in debate, including the selection, when 
several members rise at the same moment, of the one who is 
to carry on the discussion. These are duties of great impor- 
tance, and his position one of great dignity, but neither the 
duties nor the position imply political power. It mak< s little 
difference to any English party in Parliament whether the occu- 
pant of the chair has come from their own or from the hostile 
ranks. The Speaker can lower or raise the tone and efficiency 
of the House as a whole by the way he presides over it : but a 
custom as strong as law forbids him to render help to his own 
side even by private advice. Whatever information as to par- 
liamentary law he may feel free to give must be equally at the 
disposal of every member. 

In America the Speaker lias immense political power, and is 
permitted, nay expected, to use it in the interests of his party. 
He rules and leads almost as Morny and Etouher led and ruled 
the French Chamber under Louis Napoleon. In calling upon 
members to speak he prefers those of his own side. He 
decides in their favour such points ^i' order as are not dis- 
tinctly covered by the rules. His authority over the arrange- 
ment of business is so large that he can frequently advance or 
postpone particular bills or motions in a way which determines 
their fate. A recent and much respected Speaker went the 
length of intimating that he would not allow a certain bill, to 



chap, xin THE HOUSE OF REPRESENTATIVES 139 

which he strongly objected, to be so much as presented to the 
House ; and this he could do by refusing to recognize the mem- 
ber desiring to present it. Although the Speaker seldom delivers 
a speech in the House, he may and does advise the other leaders 
of his party privately; and when they "go into caucus" (i.e. hold 
a party meeting to determine their action on some pending ques- 
tion) he is present and gives counsel. He is usually the most emi- 
nent member of the party who has a seat in the House, and is 
really, so far as the confidential direction of its policy goes, almost 
its leader. His most important privilege is, however, the nomi- 
nation of the numerous standing committees already referred to. 
In the first Congress (April 1789) the House tried the plan of 
appointing its committees by ballot ; but this worked so ill that 
in January 1790 the following rule was passed : — "All commit- 
tees shall be appointed by the Speaker unless otherwise spe- 
cially directed by the House." This rule has been re-adopted 
by each successive Congress since then. 1 Not only does he, at 
the beginning of each Congress, select all the members of each 
of these committees, he even chooses the chairman of each, and 
thereby vests the direction of its business in hands approved 
by himself. The chairman is of course always selected from 
the party which commands the House, and the committee is so 
composed as to give that party a majority. Since legislation, 
and so much of the control of current administration as the 
House has been able to bring within its grasp, belong to these 
committees, their composition practically determines the action 
of the House on all questions of moment, and as the chairman- 
ships of the more important committees are the posts of most 
influence, the disposal of them is a tremendous piece of patron- 
age by which a Speaker can attract support to himself and his 
own section of the party, reward his friends, give politicians 
the opportunity of rising to distinction or practically extin- 
guish their congressional career. The Speaker is, of course, far 
from free in disposing of these places. He has been obliged 
to secure " is own election to the chair by promises to leading 

1 In England select committees on public matters are appointed by the 
House, i.e. practically by the "whips" of the several parties, though some- 
times a discussion in the House leads to the addition of other members. 
Hybrid committees are appointed partly by the House and partly by the com- 
mittee of Selection. Private bill committees are appointed by the committee 
of Selection. This committee is a small body of the older and more experi- 
enced members, intended to represent fairly all parties and sections of opinion. 



140 THE NATIONAL GOVERNMENT part i 

members and their friends ; and while redeeming such prom- 
ises, he must also regard the wishes of important groups of 
men or types of opinion, must compliment particular States by 
giving a place on good committees to their prominent repre- 
sentatives, must avoid nominations which could alarm particu- 
lar interests. These conditions surround the exercise of his 
power with trouble and anxiety. Yet after all it is power, 
power which in the hands of a capable and ambitious man 
becomes so far-reaching that it is no exaggeration to call him 
the second, if not the first political figure in the United States, 
with an influence upon the fortunes of men and the course of 
domestic events superior, in ordinary times, to the President's, 
although shorter in its duration and less patent to the world. 1 

The choice of a Speaker is therefore a political event of 
the highest significance ; and the whole policy of a Congress 
sometimes turns upon whether the man selected represents 
one or another of two divergent tendencies in the majority. 
Following thereon comes his distribution of members among 
the committees, a critical point in the history of a Congress, 
and one which is watched with keen interest. He devotes 
himself to this function for the fortnight after his installation 
with an intensity equalling that of a European prime minister 
constructing a cabinet. The parallel goes further, for as the 
chairmanships of the chief committees may be compared to 
the cabinet offices of Europe, so the Speaker is himself a great 
party leader as well as the president of a deliberative assembly. 

Although expected to serve his party in all possible direc- 
tions, he must not resort to all possible means. Both in the 

1 "The appointment of the committees implies the distribution of work to 
every member. It means the determination of the casl business shall take. 
It decides for or against all large matters of policy, or may bo decide; for 
while Speakers will differ from each other greatly in force of character ami in 
tthe wish to give positive direction to affairs, the weakest man cannot escape 
from the necessity of arranging the appointments with a view to the probable 
character of measures which will be agitated. This, however, is far from the 
measure of the Speaker's power. All rules are more or less flexible. The 

current of precedents is never consistent or uniform. 'The bias of the Speaker 

at a critical moment will turn the scale. Mr. Randal] as Speaker determined 
the assent of the House to the action of the Electoral Commission [of 1877]. 

Had he wished tor a revolutionary attempt to prevenl the announcement of 
Hayes's election, no one who has had experience in Congress, at least, will 
doubl that he could have forced the collision." — From an article in the New 
York Nation of April I. 1878, by an experienced member oi Congress. 



chap, xin THE HOUSE OF REPRESENTATIVES 141 

conduct of debate and in the formation of committees a cer- 
tain measure of fairness to opponents is required from him. 
He must not palpably wrest the rules of the House to their 
disadvantage, though he may decide all doubtful points against 
them. He must give them a reasonable share of " the floor " 
(i.e. of debate). He must concede to them proper represen- 
tation on committees. 

The dignity of the Speaker's office is high. He receives 
$8000 a year (£1600), which is a large salary for America. 
In rank he stands next after the Vice-President and on a level 
with the justices of the Supreme Court. Washington society 
was lately agitated by a claim of his wife to take precedence 
over the wives of these judges, a claim so ominous in a demo- 
cratic country that efforts were made to have it adjusted with- 
out a formal decision. 



CHAPTER XIV 

THE HOUSE AT WORK 

An Englishman expects to find his House of Commons 
reproduced in the House of Representatives. He has the 
more reason for this notion because he knows that the latter 
was modelled on the former, has borrowed many of its rules 
and technical expressions, and regards the procedure of the 
English chamber as a storehouse of precedents for its own 
guidance. 1 The notion is delusive. Resemblances of course 
there are. But an English parliamentarian who observes the 
American House at work is more impressed by the points of 
contrast than by those of similarity. The life and spirit of 
the two bodies are wholly different. 

The room in which the House meets is in the south wing of 
the Capitol, the Senate and the Supreme Court being lodged 
in the north wing. It is more than thrice as large as the 
English House of Commons, with a floor about equal in area 
to that of Westminster Hall, 139 feet long by 93 feet wide 
and 36 feet high. Light is admitted through the ceiling. 
There are on all sides deep galleries running backwards over 
the lobbies, and capable of holding two thousand five hundred 
persons. The proportions are so good that it is not till you 
observe how small a man looks at the farther end. and how faint 
ordinary voices sound, that you realize its vast size. The seats 
are arranged in curved concentric rows looking towards the 
Speaker, whose handsome marble chair is placed on a raised 
marble platform projecting slightly forward into the room. 
the clerks and the mace Ik low in front of him. in front of the 

1 Both the Senate and t lie House of Representatives have recognized Jeffer- 
Bon's Manual of Parliamentary Practia as governing the Boose when none 

Of its own rules (or of the joint rules oi Congress) are applicable. This manual 

prepared by President Jefferson, Is based on English precedents. 

14'J 



chap, xiv THE HOUSE AT WORK 143 

clerks the official stenographers, to the right the seat of the 
sergeant-at-arms. Each member has a revolving arm-chair, 
with a roomy desk in front of it, where he writes and keeps 
his papers. Behind these chairs rnns a railing, and behind the 
railing is an open space into which some classes of strangers 
may be brought, where sofas stand against the wall, and where 
smoking is practised, even by strangers, though the rules 
forbid it. 

When you enter, your first impression is of noise and tur- 
moil, a noise like that of short sharp waves in a Highland 
loch, fretting under a squall against a rocky shore. The rais- 
ing and dropping of desk lids, the scratching of pens, the clap- 
ping of hands to call the pages, keen little boys who race 
along the gangways, the pattering of many feet, the hum of 
talking on the floor and in the galleries, make up a din over 
which the Speaker with the sharp taps of his hammer, or the 
orators straining shrill throats, find it hard to make them- 
selves audible. Nor is it only the noise that gives the impres- 
sion of disorder. Often three or four members are on their 
feet at once, each shouting to catch the Speaker's attention. 
Others, tired of sitting still, rise to stretch themselves, while 
the Western visitor, long, lank, and imperturbable, leans his 
arms on the railing, chewing his cigar, and surveys the scene 
with little reverence. Less favourable conditions for oratory 
cannot be imagined, and one is not surprised to be told that 
debate was more animated and practical in, the much smaller 
room which the House formerly occupied. 

Not only is the present room so big that only a powerful 
and well-trained voice can fill it, but the desks and chairs 
make a speaker feel as if he were addressing furniture rather 
than men, while of the members few seem to listen to the 
speeches. It is true that they sit in the House instead of 
running frequently out into the lobbies, but they are more 
occupied in talking or writing, or reading newspapers, than in 
attending to the debate. To attend is not easy, for only a 
shrill voice can overcome the murmurous roar ; and one some- 
times finds the newspapers in describing an unusually effective 
speech, observe that " Mr. So-and-So's speech drew listeners 
about him from all parts of the Hous.e." They could not hear 
him where they sat, so they left their places to crowd in the 



144 THE NATIONAL GOVERNMENT part i 

gangways near hiin. " Speaking in the House," says an 
American writer, " is like trying to address the people in the 
Broadway omnibuses from the kerbstone in front of the Astor 
House. . . . Men of fine intellect and of good ordinary 
elocution have exclaimed in despair that in the -House of 
Eepresentatives the mere physical effort to be heard uses up 
all the powers, so that intellectual action becomes impossible. 
The natural refuge is in written speeches or in habitual si- 
lence, which one dreads more and more to break." 

It is hard to talk calm good sense at the top of your voice, 
hard to unfold a complicated measure. A speaker's vocal 
organs react upon his manner, and his manner on the sub- 
stance of his speech. It is also hard to thunder at an unscru- 
pulous majority or a factious minority when they do not sit 
opposite to you, but beside you, and perhaps too much occu- 
pied with their papers to turn round and listen to you. The 
Americans think this an advantage, because it prevents scenes 
of disorder. They may be right; but what order gains ora- 
tory loses. It is admitted that the desks encourage inatten- 
tion by enabling men to write their letters ; but though nearly 
everybody agrees that they would be better away, nobody 
supposes that a proposition to remove them would succeed. 1 
So too the huge galleries add to the area the voice has to fill ; 
but the public like them, and might resent a removal to a 
smaller room. The smoking shocks an Englishman, but not 
more than the English practice of wearing hats in both Houses 
of Parliament shocks an American. Interruption, cries of 
" Divide," interjected remarks, are not more frequent — when 
I have been present they seemed to be much less frequent — 
than in the House of Commons. Approval is expressed more 
charily, as is usually the case in America. Instead of " Hear, 
hear," there is a clapping of 1 Kinds and hitting of desks. Ap- 
plause is sometimes given from the galleries; and occasionally 
at the end of a session both the members below and the Btran- 
gers in the galleries above have been known to join in singing 
some popular ditty. 

There is little good speaking. I do not mean merely that 

1 Tho House decided in 1859, at the cud of one Congress, that the desks 

should \>o removed from the Hall (as the Bouse is railed), but in tin- next suc- 
ceeding session the old arrangement was resumed. 



chap, xiv THE HOUSE AT WORK 145 

fine oratory, oratory which presents valuable thoughts in elo- 
quent words, is rare, for it is rare in all assemblies. But in the 
House of Representatives a set speech upon any subject of 
importance tends to become not an exposition or an argument 
but a piece of elaborate and high-flown declamation. Its au- 
thor is often wise enough to send direct to the reporters what 
he has written out, having read aloud a small part of it in the 
House. When it has been printed in extenso in the Congres- 
sional Record (leave to get this done being readily obtained), 
he has copies struck off and distributes them among his con- 
stituents. Thus everybody is pleased and time is saved. 1 

That there is not much good business debating, by which I 
mean a succession of comparatively short speeches addressed 
to a practical question, and hammering it out by the collision 
of mind with mind, arises not from any want of ability among 
the members, but from the unfavourable conditions under which 
the House acts. Most of the practical work is done in the 
standing committees, while much of the House's time is con- 
sumed in pointless discussions, where member after member 
delivers himself upon large questions, not likely to be brought 
to a definite issue. Many of the speeches thus called forth 
have a value as repertories of facts, but the debate as a whole is 
unprofitable and languid. On the other hand the five-minute 
debates which take place, when the House imposes that limit of 
time, in Committee of the Whole on the consideration of a bill 
reported from a standing committee, are often lively, pointed, 
and effective. The topics which excite most interest and are best 
discussed are those of taxation and the appropriation of money, 
more particularly to public works, the improvement of rivers 
and harbours, erection of Federal buildings, and so forth. This 
kind of business is indeed to most of its members the chief in- 
terest of Congress, the business which evokes the finest skill of a 
tactician and offers the severest temptations to a frail conscience. 
As a theatre or school either of political eloquence or political 
wisdom, the House has been inferior not only to the Senate 
but to most European assemblies. Nor does it enjoy much con- 
sideration at home. Its debates are very shortly reported in 

1 1 was told that formerly speeches might he printed in the Record as a 
matter of course, hut that, a member having used this privilege to print and 
circulate a poem, the right was restrained. 

VOL. I L 



146 THE NATIONAL GOVERNMENT part i 

the Washington papers as well as in those of Philadelphia and 
New York. They are not widely read except in very exciting 
times, and do little to instruct or influence public opinion. 

This is of course only one part of a legislature's functions. 
An assembly may despatch its business successfully and yet 
shine with few lights of genius. But the legislation on public 
matters which the House turns out is scanty in quantity and 
generally mediocre in quality. What is more, the House 
tends to avoid all really grave and pressing questions, skirmish- 
ing round them, but seldom meeting them in the face or reach- 
ing a decision which marks an advance. If one makes this 
observation to an American, he replies that at this moment 
there are few such questions lying within the competence of 
Congress, and that in his country representatives must not 
attempt to move faster than their constituents. This latter 
remark is eminently true ; it expresses a feeling which has 
gone so far that Congress conceives its duty to be to follow and 
not to seek to lead public opinion. The harm actually suffered 
so far is not grave. But the European observer cannot escape 
the impression that Congress might fail to grapple with a 
serious public danger, and is at present hardly equal to the 
duty of guiding and instructing the political intelligence of the 
nation. 

In all assemblies one must expect abundance of unreality and 
pretence, many speeches obviously addressed to the gallery, 
many bills meant to be circulated but not to be seriously pro- 
ceeded with. However, the House seems to indulge itself more 
freely in this direction than any other chamber of equal rank. 
Its galleries are large, holding 2500 persons. But it talks and 
votes, I will not say to the galleries, for the galleries cannot 
hear it, but as if every section of American opinion was present 
in the room. It adopts unanimously resolutions which perhaps 
no single member in his heart approves of, but which no one 
cares to object to, because it seems not worth while to do so. 
This habit sometimes exposes it to a snub, such as that admin- 
istered by Bismarck in the matter of the resolution of condo- 
lence with tin* German Parliament on the death of Lasker, a 
resolution harmless indeed but so superfluous as to be almost 
obtrusive. A practice unknown to Europeans is of course mis- 
understood by them, and sometimes provokes resent tnent Bills 



chap, xiv THE HOUSE AT WORK 147 

are frequently brought into the House proposing to effect 
impossible objects by absurd means, which astonish a visitor, 
and may even cause disquiet in other countries, while few 
people in America notice them, and no one thinks it worth 
while to expose their emptiness. American statesmen keep 
their pockets full of the loose cash of empty compliments and 
pompous phrases, and become so accustomed to scatter it among 
the crowd that they are surprised when a complimentary reso- 
lution or electioneering bill, intended to humour some section 
of opinion at home, is taken seriously abroad. The House is 
particularly apt to err in this way, because having no responsi- 
bility in foreign policy, and little sense of its own dignity, it 
applies to international affairs the habits of election meetings. 
Watching the House at work, and talking to the members 
in the lobbies, an Englishman naturally asks himself how the 
intellectual quality of the body compares with that of the 
House of Commons. His American friends have prepared 
him to expect a marked inferiority. They are fond of run- 
ning down congressmen. The cultivated New Englanders and 
New Yorkers do this out of intellectual fastidiousness, and in 
order to support the role which they unconsciously fall into 
when talking to Europeans. The rougher Western men do it 
because they would not have congressmen either seem or be 
better in any way than themselves, since that would be opposed 
to republican equality. A stranger who has taken literally all 
he hears is therefore surprised to find so much character, 
shrewdness, and keen though limited intelligence among the 
representatives. Their average business capacity is not below 
that of members of the House of Commons. True it is that 
great lights, such as usually adorn the British chamber, are 
absent : true also that there are fewer men who have received 
a high education which has developed their tastes and enlarged 
their horizons. The want of such men seriously depresses the 
average. It is raised, however, by the almost total absence of 
two classes hitherto well represented in the British Parlia- 
ment, the rich, dull parvenu, who has bought himself into pub- 
lic life, and the perhaps equally unlettered young sporting or 
fashionable man who, neither knowing nor caring anything 
about politics, has come in for a county or (before 1885) a 
small borough, on the strength of his family estates. Few 



148 THE NATIONAL GOVERNMENT part i 

congressmen sink to so low an intellectual level as these two 
sets of persons, for congressmen have almost certainly made 
their way by energy and smartness, picking up a knowledge of 
men and things " all the time." In respect of width of view, 
of capacity for penetrating thought on political problems, 
representatives are scarcely above the class from which they 
came, that of second-rate lawyers or farmers, less often mer- 
chants or petty manufacturers. They do not pretend to be 
statesmen in the European sense of the word, for their careers, 
which have made them smart and active, have given them 
little opportunity for acquiring such capacities. As regards 
manners they are not polished, because they have not lived 
among polished people ; yet neither are they rude, for to get 
on in American politics one must be civil and pleasant. The 
standard of parliamentary language, and of courtesy generally, 
has tended to rise during the last few decades ; and scenes 
of violence and confusion such as occasionally convulse the 
French chamber, and were common in Washington before the 
War of Secession, are now rare. 

On the whole, the most striking difference between the 
House of Representatives and European popular assemblies is 
its greater homogeneity. The type is marked ; the individuals 
vary little from the type. In Europe all sorts of persons are 
sucked into the vortex of the legislature, nobles and landown- 
ers, lawyers, physicians, business men, artisans, journalists, 
men of learning, men of science. In America five representa- 
tives out of six are politicians pure and simple, members of a 
class as well defined as any one of the above-mentioned Euro- 
pean classes. The American people, though it is composed of 
immigrants from every country and occupies a whole conti- 
nent, tends to become more uniform than most of the great 
European peoples; and this characteristic is palpable in its 
legislature. 

Uneasy lies the head of an ambitious congressman, 1 for the 
chances are at least even that he will lose his seat at the next 
election. It was observed in 17SS that halt' of the members of 

1 The term "Congressman " is commonly used to describe a member of the 
House of Representatives, though of course it ought to include senators also. 

So in England " Member of Parliament " means member of the House of Com- 
mons, thOUgfa it Covers all persons who haw scats in the House of Lords. 



chap, xiv THE HOUSE AT WORK 149 

each, successive State legislature were new members, and this 
average has been usually maintained in the Federal legislature, 
rather less than half keeping their seats from one Congress to 
the next. In England the proportion of members re-elected 
from Parliament to Parliament is much higher. Any one can 
see how much influence this constant change in the composi- 
tion of the American House must have upon its legislative 
efficiency. 

I have kept to the last the feature of the House which 
Europeans find the strangest. 

It has parties, but they are headless. There is neither 
Government nor Opposition ; neither leaders nor whips. No 
person holding any Federal office or receiving any Federal 
salary, can be a member of it. That the majority may be and 
often is opposed to the President and his cabinet, does not 
strike Americans as odd, because they proceed on the theory 
that the legislative ought to be distinct from the executive 
authority. Since no minister sits, there is no official repre- 
sentative of the party which for the time being holds the reins 
pf the executive government. Neither is there any unofficial 
representative. And as there are no persons whose opinions 
expressed in debate are followed, so there are none whose duty 
it is to bring up members to vote, to secure a quorum, to see 
that people know which way the bulk of the party is going. 

So far as the majority has a chief, thai; chief is the Speaker, 
who has been chosen by them as their ablest and most influen- 
tial man ; but as the Speaker seldom joins in debate (though 
he may do so by leaving the chair, having put some one else 
in it), the chairman of the most important committee, that of 
Ways and Means, enjoys a sort of eminence, and comes nearer 
than any one else to the position of leader of the House. 1 But 
his authority does not always enable him to secure co-operation 
for debate among the best speakers of his party, putting up 
now one now another, after the fashion of an English prime 
minister, and thereby guiding the general course of the dis- 
cussion. 

The minority do not formally choose a leader, nor is there 
usually any one among them whose career marks him out as 

1 The Chairman of the Committee on Appropriations has perhaps as much 
real power. 



150 THE NATIONAL GOVERNMENT p.vrt i 

practically the first man, but the person whom they have put 
forward as their paity candidate for the Speakership, giving 
him what is called "the complimentary nomination," has a 
sort of vague claim to be so regarded. This honour amounts 
to very little. In the forty-eighth Congress the Speaker 
of the last preceding Congress received such a complimentary 
nomination from the Kepublicans against Mr. Carlisle, whom 
the Democratic majority elected. But the Republicans imme- 
diately afterwards refused to treat their nominee as leader, and 
left him, on some motion which he made, in a ridiculously 
small minority. Of course when an exciting question comes 
up, some man of marked capacity and special knowledge will 
often become virtually leader, in either party, for the purposes 
of the debates upon it. But he will not necessarily command 
the votes of his own side. 

How then does the House work ? 

If it were a Chamber, like those of Fiance or Germany, 
divided into four or five sections of opinion, none of which 
commands a steady majority, it would not work at all. But 
parties are few in the United States, and their cohesion tight. 
There are usually two only, so nearly equal in strength that 
the majority cannot afford to dissolve into groups like those of 
France. Hence upon all large national issues, whereon the 
general sentiment of the party has been declared, both the 
majority and the minority know how to vote, and vote solid. 

If the House were, like the English House of Commons, to 
some extent an executive as well as a legislative body — one by 
whose co-operation and support the daily business of govern- 
ment had to be carried on — it could not work without leaders 
and whips. This it is not. It neither creates, nor controls, 
nor destroys, the Administration, which depends on the Pres- 
ident, himself the offspring oi a direct popular mandate. 

"Still," it may be replied, "the House lias important func- 
tions to discharge. Legislation comes from it. Supply de- 
pends on it. It settles the tariff, and votes money for the 
civil and military services, besides passing measures to cure 
the delects which experience must disclose in the working of 
every government, every system of jurisprudence. How can 
it satisfy these calls upon it without leaders and organiza- 
tion 1 .'" ' 



chap, xiv THE HOUSE AT WOKK 151 

To a European eye, it does not seem to satisfy them. It 
votes the necessary supplies, but not wisely, giving sometimes 
too much, sometimes too little money, and taking no adequate 
securities for the due application of the sums voted. For 
many years past it has fumbled over both the tariff problem 
and the currency problem. It produces few useful laws, and 
leaves on one side many grave practical questions. An English- 
man is disposed to ascribe these failures to the fact that as 
there are no leaders, there is no one responsible for the neglect 
of business, the miscarriage of bills, the unwise appropriation 
of public funds. " In England," he says, " the ministry of the 
day bears the blame of whatever goes wrong in the House of 
Commons. Having a majority, it ought to be able to do what 
it desires. If it pleads that its measures have been obstructed, 
and that it cannot under the faulty procedure of the House of 
Commons accomplish what it seeks, it is met, and crushed, by 
the retort that in such case it ought to have the procedure 
changed. What else is its majority good for but to secure 
the efficiency of Parliament ? In America there is no person 
against whom similar charges can be brought. Although 
conspicuous folly or perversity on the part of the majority 
tends to discredit them collectively with the public, and may 
damage them at the next presidential or congressional election, 
still responsibility, to be effective, ought to be fixed on a few 
conspicuous leaders. Is not the want of such men, men to 
whom the country can look, and whom the ordinary members 
will follow, the cause of some of the faults which are charged 
on Congress, of its hesitations, its inconsistencies and changes, 
its ignoble surrenders to some petty clique, its deficient sense 
of dignity, its shrinking from troublesome questions, its pro- 
clivity to jobs ?" 

Two American statesmen to whom such a criticism was sub- 
mitted, replied as follows : " It is not for want of leaders that 
Congress has forborne to settle the questions mentioned, but 
because the division of opinion in the country regarding them 
has been faithfully reflected in Congress. The majority has not 
been strong enough to get its way ; and this has happened, not 
only because abundant opportunities for resistance arise from 
the methods of doing business, but still more because no dis- 
tinct impulse or mandate towards any particular settlement of 



152 THE NATIONAL GOVERNMENT part i 

these questions has been received from the country. It is not 
for Congress to go faster than the people. When the country 
knows and speaks its mind, Congress will not fail to act." The 
significance of this reply lies in its pointing to a fundamental 
difference between the conception of the respective positions 
and duties of a representative body and of the nation at large 
entertained by Americans, and the conception which has hitherto 
prevailed in Europe. Europeans have thought of a legislature 
as belonging to the governing class. In America there is no such 
class. Europeans think that the legislature ought to consist of 
the best men in the country, Americans that it should be a fair 
average sample of the country. Europeans think that it ought 
to lead the nation, Americans that it ought to follow the nation. 
Without some sort of organization, an assembly of three 
hundred and thirty men would be a mob, so necessity has pro- 
vided in the system of committees a substitute for the European 
party organization. This system will be explained in the next 
chapter ; for the present it is enough to observe that when a 
matter which has been (as all bills are) referred to a committee, 
comes up in the House to be dealt with there, the chairman of 
the particular committee is treated as a leader pro hac vice, and 
members who knew nothing of the matter are apt to be guided 
by his speech or his advice given privately. If his advice is 
not available, or is suspected because he belongs to the opposite 
party, they seek direction from the member in charge of the 
bill, if he belongs to their own party, or from some other mem- 
ber of the committee, or from some friend whom they trust. 
When a debate arises unexpectedly on a question of importance, 
members are often puzzled how to vote. The division being 
taken, they get some one to move a call of yeas and nays, and 
while this slow process goes on, they scurry about asking advice 
as to their action, and give their votes on the second calling over 
if not ready on the first. If the issue is one of serious conse- 
quence to the party, a recess is demanded by the majority. Bay 
for two hours. The House then adjourns, each party " goes 
into caucus" (the Speaker possibly announcing the fact), and 
debates the matter with closed doors. Then the House resumes, 
f and each party votes solid according to the determination 
arrived at in caucus. In spite of these expedients, surprises 
and scratch votes are not uncommon. 



chap xiv THE HOUSE AT WORK 153 

I have spoken of the din of the House of Bepresentatives, of 
its air of restlessness and confusion, contrasting with the staid 
gravity of the Senate, of the absence of dignity both in its pro- 
ceedings and in the bearing and aspect of individual members. 
All these things notwithstanding, there is something impres- 
sive about it, something not unworthy of the continent for 
which it legislates. 

This huge gray hall, filled with perpetual clamour, this mul- 
titude of keen and eager faces, this ceaseless coming and going 
of many feet, this irreverent public, watching from the galleries 
and forcing its way on to the floor, all speak to the beholder's 
mind of the mighty democracy, destined in another century 
to form one half of civilized mankind, whose affairs are here 
debated. If the men are not great, the interests and the 
issues are vast and fateful. Here, as so often in America, one 
thinks rather of the future than of the present. Of what tre- 
mendous struggles may not this hall become the theatre in 
ages yet far distant, when the parliaments of Europe have 
shrunk to insignificance ? 



& 



CHAPTER XV 

THE COMMITTEES OF CONGRESS 

The most abiding difficulty of free government is to get large 
assemblies to work promptly and smoothly either for legisla- 
tive or executive purposes. We perceive this difficulty in pri- 
mary assemblies of thousands of citizens, like those of ancient 
Athens or Syracuse ; we see it again in the smaller repre- 
sentative assemblies of modern countries. Three methods of 
overcoming it have been tried. One is to leave very few and 
comparatively simple questions to the assembly, reserving all 
others for a smaller and more permanent body, or for executive 
officers. This was the plan of the Romans, where the comitia 
(primary assemblies) were convoked only to elect magistrates 
and pass laws, which were short, clear, and submitted en bloc, 
without possibility of amendment, for a simple Yes or Xo. 
Another method is to organize the assemblies into well-defined 
parties, each recognizing and guide;! by one or more leaders, so 
that on most occasions and for most purposes the rank and file 
of members exert no volition of their own, but move like bat- 
talions, at the word of command. This has been the English 
system since about the time of Queen Anne. It was originally 
worked by means of extensive corruption ; and not till this 
phase was passing away did it become an object of admiration 
to the world. Latterly it has been reproduced in the parlia- 
ments of most modern European states and of the British colo- 
nies. The third method, which admits of being more or less 
combined with the second, is to divide the assembly into a 
number of smaller bodies to which legislative ami administra- 
tive questions may be referred, either lor final determination 
or to be reported on to the whole body. This is the system of 
committees, applied to some extent in England, to a larger ex- 
tent in France tinder the names of bureaux and commissiotis, 

154 



chap, xv THE COMMITTEES OF CONGRESS 155 

and most of all in the United States. Some account of its 
rules and working there is essential to a comprehension of the 
character of Congress and of the relations of the legislative to 
the executive branch of the Federal Government. 

When Congress first met in 1789, both Houses found them- 
selves, as the State legislatures had theretofore been and still 
are, without official members and without leaders. 1 The Senate 
occupied itself chiefly with executive business, and appointed 
no standing committees until 1816. The House however 
had bills to discuss, plans of taxation to frame, difficult 
questions of expenditure, and particularly of the national debt, 
to consider. For want of persons whose official duty required 
them, like English ministers, to run the machine by drafting 
schemes and bringing the raw material of its work into shape, 
it was forced to appoint committees. At first there were few; 
even in 1802 we find only five. As the numbers of the House 
increased and more business flowed in, additional committees 
were appointed; and as the House became more and more 
occupied by large political questions, minor matters were more 
and more left to be settled by these select bodies. Like all 
legislatures, the House constantly sought to extend its vision 
and its grasp, and the easiest way to do this was to provide 
itself with new eyes and new hands in the shape of further 
committees. The members were not, like their contemporaries 
in the English House of Commons, well-to-do men, mostly idle ; 
they were workers and desired to be occupied. It was impos- 
sible for them all to speak in the House ; but all could talk in 
a committee. Every permanent body cannot help evolving 
some kind of organization. Here the choice was between creat- 
ing one ruling committee which should control all business, like 
an English ministry, and distributing business among a num- 
ber of committees, each of which should undertake a special 
class of subjects. The latter alternative was recommended, 
not only by its promising a useful division of labour, but by 
its recognition of republican equality. It therefore prevailed, 
and the present elaborate system grew slowly to maturity. 

To avoid the tedious repetition of details, I have taken the 

1 The Congress of the Confederation (1781-88) had been a sort of diplomatic 
congress of envoys from States, and furnished few precedents available for 
tbe Congress under the new constitution. 



156 THE NATIONAL GOVERNMENT 

House of Representatives and its committees for description, 
because the system is more fully developed there than in the 
Senate. But a very few words on the Senate may serve to pre- 
vent misconceptions. 

There were in 1892 forty-four standing Senate committees, 
appointed for two years, being the period of a Congress. 1 They 
and their chairman are chosen not by the presiding officer but 
by the Senate itself, voting by ballot. Practically they are 
selected by caucuses of the majority and minority meeting in 
secret conclave, and then carried wholesale by vote in the Sen- 
ate. Each consists of from two to thirteen members, the most 
common numbers being seven and nine, and all senators sit on 
more than one committee, some upon four or more. The chair- 
man is appointed by the Senate and not by the committees 
themselves. There are also select committees appointed for a 
special purpose and lasting for one session only. Every bill 
introduced goes after its first and second reading (which are 
granted as of course) to a standing committee, which examines 
and amends it, and reports it back to the Senate. 

There were in the fifty-second Congress (May 1892) fifty 
standing committees of the House, i.e. committees appointed 
under standing regulations, and therefore regularly formed 
at the beginning of every Congress. Each committee con- 
sists of from three to sixteen members, eleven and thirteen 
being the commonest numbers. Every member of the House 
is placed on some one committee, not many on more than one. 
Besides these, select committees, seldom exceeding ten, on 
particular subjects of current interest are appointed from time 
to time. A complete list of the committees will be found at 
the end of this chapter. The most important standing com- 
mittees are the following : — Ways and means ; appropriations; 
elections ; banking and currency ; accounts ; rivers and har- 
bours ; judiciary (including changes in private law as well as 
in courts of justice); railways and canals; foreign affairs; 
naval affairs; military affairs; public lands; agriculture; 
claims ; and the several committees on the expenditures of 
the various departments of the administration (war, navy, etc.). 

1 Although the Senate is a permanent body, its proceedings are for some pur- 
poses regulated with reference to the re-election every two years of the House ; as 
in England the peers are summoned afresh at the beginning of eaeh Parliament. 



chap, xv THE COMMITTEES OE CONGRESS 157 

The members of every standing committee are nominated 
by the Speaker at the beginning of each Congress, and sit 
through its two sessions; those of a select committee also by 
the Speaker, after the committee has been ordered by the 
House. (Senate committees sometimes sit during the recess.) 
The member first named is chairman. 

To some one of these standing committees each and every 
bill is referred. Its second as well as its first reading is 
granted as of course, and without debate, since there would be 
no time to discuss the immense number of bills presented. 
When read a second time it is referred under the general rules 
to a committee ; but doubts often arise as to which is the ap- 
propriate committee, because a bill may deal with a subject 
common to two or more jurisdictions, or include topics some 
of which belong to one jurisdiction, others to another. The 
disputes which may in such cases arise between several com- 
mittees lead to keen debates and divisions, because the fate of 
the measure may depend on which of two possible paths it is 
made to take, since the one may bring it before a tribunal of 
friends, the other before a tribunal of enemies. Such disputes 
are determined by the vote of the House itself. 

Not having been discussed, much less affirmed in principle, 
by the House, a bill comes before its committee with no pre- 
sumption in its favour, but rather as a shivering ghost stands 
before Minos in the nether world. It is one of many, and for 
the most a sad fate is reserved. The committee may take evi- 
dence regarding it, may hear its friends and its opponents. 
They usually do hear the member who has introduced it, since 
it seldom happens that he has himself a seat on the committee. 
Members who are interested approach the committee and state 
their case there, not in the House, because they know that the 
House will have neither time nor inclination to listen. The 
committee can amend the bill as they please, and although 
they cannot formally extinguish it, they can practically do so 
by reporting adversely, or by delaying to report it till late in 
the session, or by not reporting it at all. 

In one or other of these ways nineteen-twentieths of the 
bills introduced meet their death, a death which the majority 
doubtless deserve, and the prospect of which tends to make 
members reckless as regards both the form and the substance 



158 THE NATIONAL GOVERNMENT run i 

of tlieir proposals. A motion may be made in the House that 
the committee do report forthwith, and the Honse can of 
course restore the bill, when reported, to its original form. 
Bnt these expedients rarely succeed, for few are the measures 
which excite sufficient interest to induce an impatient and 
over-burdened assembly to take additional work upon its own 
shoulders or to overrule the decision of a committee. 

The deliberations of committees are usually secret. Evi- 
dence is frequently taken with open doors, but the newspapers 
do not report it, unless the matter excite public interest ; and 
even the decisions arrived at are often noticed in the briefest 
way. It is out of order to canvass the proceedings of a com- 
mittee in the House until they have been formally reported to 
it ; and the report submitted does not usually state how the 
members have voted, or contain more than a very curt outline 
of what has passed. No member speaking in the House is 
entitled to reveal anything further. 

A committee have technically no right to initiate a bill, but 
as they can either transform one referred to them, or, if none 
has been referred which touches the subject they seek to deal 
with, can procure one to be brought in and referred to them, 
their command of their own province is unbounded. Hence 
the character of all the measures that may be passed or even 
considered by the House upon a particular branch of legisla- 
tion depends on the composition of the committee concerned 
with that branch. Some committees, such as those on naval 
and military affairs, and those on the expenditure of the sev- 
eral departments, deal with administration rather than leg- 
islation. They have power to summon the officials of the 
departments before them, and to interrogate them as to their 
methods and conduct. Authority they have none, for officials 
are responsible only to their chief, the President; but the 
power of questioning is sufficient to check it' not to guide the 
action of a department, since imperative statutes may follow. 
and the department, sometimes desiring Legislation and always 
desiring money, has strong motives for keeping on good terms 
with those who control legislation and the purse. It is 
through these committees chiefly that the executive and legis- 
lative branches of government touch one another. Yet the 
contact, although the most important thing in a government. 



chap, xv THE COMMITTEES OE CONGRESS 159 

is the thing which the nation least notices, and has the scant- 
iest means of watching. 

The scrutiny to which the administrative committees subject 
the departments is so close and constant as to occupy much 
. of the time of the officials and seriously interfere with their 
duties. Not only are they often summoned to give evidence : 
they are required to furnish minute reports on matters which 
a member of Congress could ascertain for himself. Neverthe- 
less the House committees are not certain to detect abuses or 
peculation, for special committees of the Senate have repeatedly 
unearthed dark doings which had passed unsuspected the ordeal 
of a House investigation. After a bill has been debated and 
amended by the committee it is reported back to the House, 
and is taken up when that committee is called in its order. 
One hour is allowed to the member whom his fellow committee- 
men have appointed to report. He seldom uses the whole of 
this hour, but allots part of it to other members, opponents 
as well as friends, and usually concludes by moving the pre- 
vious question. This precludes subsequent amendments and 
leaves only an hour before the vote is taken. As on an 
average each committee (excluding the two or three great 
ones) has only two hours out of the whole ten months of 
Congress allotted to it to present and have discussed all its 
bills, it is plain that few measures can be considered, and each 
but shortly, in the House. The best chance of pressing one 
through is under the rule which permits the suspension of 
standing orders by a two-thirds majority during the last six 
days of the session. 

What are the results of this system ? 

It destroys the unity of the House as a legislative body. 
Since the practical work of shaping legislation is done in the 
committees, the interest of members centres there, and they 
care less about the proceedings of the whole body. It is as a 
committee-man that a member does his real work. In fact the 
House has become not so much a legislative assembly as a 
huge panel from which committees are selected. 

It prevents the capacity of the best members from being 
brought to bear upon any one piece of legislation, however im- 
portant. The men of most ability and experience are chosen 
to be chairmen of the committees, or to sit on the two or three 



160 THE NATIONAL GOVERNMENT part i 

greatest. For other committees there remains only the rank 
and file of the House, a rank and file half of which is new 
at the beginning of each Congress. Hence every committee 
(except the aforesaid two or three) is composed of ordinary 
persons, and it is impossible, save by creating a special select 
committee, to get together what would be called in England "a 
strong committee," i.e. one where half or more of the members 
are exceptionally capable. The defect is not supplied by dis- 
cussion in the House, for there is no time for such discussion. 

It cramps debate. Every foreign observer has remarked 
how little real debate, in the European sense, takes place in 
the House of Eepresentatives. The very habit of debate, the 
expectation of debate, the idea that debate is needed, have 
vanished, except as regards questions of revenue and expendi- 
ture, because the centre of gravity has shifted from the House 
to the committees. 

It lessens the cohesion and harmony of legislation. Each 
committee goes on its own way with its own bills just as 
though it were legislating for one planet and the other com- 
mittees for others. Hence a want of policy and method in 
congressional action. The advance is haphazard ; the parts 
have little relation to one another or to the whole. 

It gives facilities for the exercise of underhand and even 
corrupt influence. In a small committee the voice of each 
member is well worth securing, and may be secured with little 
danger of a public scandal. The press cannot, even when the 
doors of committee rooms stand open, report the proceedings 
of fifty bodies; the eye of the nation cannot follow and mark 
what goes on within them ; while the subsequent proceedings 
in the House are too hurried to permit a ripping up there of 
suspicious bargains struck in the purlieus of the Capitol, and 
fulfilled by votes given in a committee. I do not think that 
corruption, in its grosser forms, is rife at Washington. It 
appears chiefly in the milder form of reciprocal jobbing or (as 
it is called) " log-rolling." But the arrangements of the com- 
mittee system have produced and sustain the class of profes- 
sional " lobbyists," men, and women too, who make it their 
business to "see" members and procure, by persuasion, impor- 
tunity, or the use of inducements, the passing of bills, public 
as well as private, which involve gain to their promoters. 



chap, xv THE COMMITTEES OF CONGRESS 161 

It reduces responsibility. In England, if a bad Act is 
passed or a good bill rejected, the blame falls primarily upon 
the ministry in power whose command of the majority would 
have enabled them to defeat it, next upon the party which 
supported the ministry, then upon the individual members' 
who are officially recorded to have "backed" it and voted for 
it in the House. The fact that a select committee recom- 
mended it — and comparatively few bills pass through a select 
committee — would not be held to excuse the default of the 
ministry and the majority. But in the United States the 
ministry cannot be blamed, for the cabinet officers do not sit 
in Congress ; the House cannot be blamed because it has only 
followed the decision of its committee ; the committee may be 
an obscure body, whose members are too insignificant to be 
worth blaming. The chairman is possibly a man of note, but 
the people have no leisure to watch fifty chairmen : they know 
Congress and Congress only; they cannot follow the acts of 
those to whom Congress chooses to delegate its functions. 
No discredit attaches to the dominant party, because they 
could not control the acts of the eleven men in the committee 
room. Thus public displeasure rarely finds a victim, and 
everybody concerned is relieved from the wholesome dread 
of damaging himself and his party by negligence, perversity, 
or dishonesty. Only when a scandal has arisen so serious as 
to demand investigation is the responsibility of the member 
to his constituents and the country brought duly home. 

It lowers the interest of the nation in the proceedings of 
Congress. 1 Except in exciting times, when large questions 
have to be settled, the bulk of real business is done not in the 
great hall of the House but in this labyrinth of committee 
rooms and the lobbies that surround them. What takes place 

1 " The doubt and confusion of thought which must necessarily exist in the 
minds of the vast majority of voters as to the best way of exerting their will 
in influencing the action of an assembly whose organization is so complex, 
whose acts are apparently so haphazard, and in which responsibility is spread 
so thin, throws constituencies into the hands of local politicians who are more 
visible and tangible than are the leaders of Congress, and generates the while 
a profound distrust of Congress as a body whose actions cannot be reckoned 
beforehand by any standard of promises made at elections or any programmes 
announced by conventions." — Woodrow Wilson, Congressional Government, 
a thoughtful book from which I have derived much help in this and the two 
following chapters. 

VOL. I M 



162 THE NATIONAL GOVERNMENT ram i 

in view of the audience is little more than a sanction, formal 
indeed but hurried and often heedless, of decisions procured 
behind the scenes, whose mode and motives remain undisclosed. 
Hence people cease to watch Congress with that sharp eye 
which every principal ought to keep fixed on his agent. Acts 
pass unnoticed, whose results are in a few months discovered 
to be so grave that the newspapers ask how it happened that 
they were allowed to pass. 

The country of course suffers from the want of the light and 
leading on public affairs which debates in Congress ought to 
supply. But this is more fairly chargeable to defects of the 
House which the committees are designed to mitigate than to the 
committees themselves. The time which the committee work 
leaves for the sittings of the House is long enough to permit 
due discussion did better arrangements exist for conducting it. 

It throws power into the hands of the chairmen of commit- 
tees, especially, of course, of those which deal with finance and 
with great material interests. They become practically a 
second set of ministers, before whom the departments tremble, 
and who, though they can neither appoint nor dismiss a post- 
master or a tide-waiter, can by legislation determine the policy 
of the branch of administration which they oversee. This 
power is not necessarily accompanied by responsibility, because 
it is largely exercised in secret. 

It enables the House to deal with a far greater number of 
measures and subjects than could otherwise be overtaken ; and 
has the advantage of enabling evidence to be taken by those 
whose duty it is to re-shape or amend a bill. It replaces the 
system of interrogating ministers in the House which prevails 
in most European chambers ; and enables the working of the 
administrative departments to be minutely scrutinized. 

It sets the members of the House to work for which their 
previous training has iitted them much better than for either 
legislating or debating " in the grand style." They are shrewd, 
keen men of business, apt lor talk in committee, less apt for 
wide views of policy and elevated discourse in an assembly. 
The committees arc therefore ^ood working bodies, but bodies 
which confirm congressmen in the intellectual habits they bring 
with them instead of raising them to the higher platform of 
national questions and interests. 



chap, xv THE COMMITTEES OE CONGRESS 163 

Summing up, we may say that under this system the House 
despatches a vast amount of work and does the negative part 
of it, the killing off of worthless bills, in a thorough way. 
Were the committees abolished and no other organization sub- 
stituted, the work could not be done. But much of it, includ- 
ing most of the private bills, ought not to come before Congress 
at all ; and the more important part of what remains, viz. pub- 
lic legislation, is dealt with by methods which secure neither 
the pressing forward of the measures most needed, nor the due 
debate of those that are pressed forward. 

Why, if these mischiefs exist, is the system of committee 
legislation maintained ? 

It is maintained because none better has been, or, as most 
people think, can be devised. " We have," say the Americans, 
" three hundred and fifty -six members in the House, most of 
them eager to speak, nearly all of them giving constant attend- 
ance. The bills brought in are so numerous that in our two 
sessions, one of seven or eight months, the other of three months, 
not one-twentieth could be fairly discussed on second reading or 
in committee of the Whole. If even this twentieth were dis- 
cussed, no time would remain for supervision of the depart- 
ments of State. That supervision itself must, since it involves 
the taking of evidence, be conducted through committees. In 
England one large and strong committee, viz. the ministry of 
the day, undertakes all the more important business, and 
watches even the bills of private members. Your House of 
Commons could not work for a single sitting without such a 
committee, as is proved by the fact that when you are left for 
a little without a ministry, the House adjourns. We cannot 
have such a committee, because no office-holder sits in Congress. 
Neither can we organize the House under leaders, because prom- 
inent men have among us little authority, since they are uncon- 
nected with the executive, and derive no title from the people. 1 

1 In England the prime minister and the leader of the Opposition (often an 
ex-prime minister) have been recognized as leaders not only by the candidates 
who at the last preceding general election have declared their willingness to 
support one or other, but also by the rank and file of their respective parties. 
These leaders have thus a sort of right to the allegiance of their followers, 
though a right which they may forfeit. In America no candidate pledges 
himself to support a particular congressional leader. It would be thought 
unbecoming in him to do so. His allegiance is to the party, and his constitu- 
ents do not expect him to support any given person, however eminent. 



164 THE NATIONAL GOVERNMENT cart i 

Neither can we create a ruling committee of the majority, 
because this would be disliked as an undemocratic and tyran- 
nical institution. Hence our only course is to divide the un- 
wieldy multitude into small bodies capable of dealing with 
particular subjects. Each of them is no doubt powerful in 
its own sphere, but that sphere is so small that no grave 
harm can result. The Acts passed may not be the best possi- 
ble ; the legislation of the year may resemble a patchwork 
quilt, where each piece is different in colour and texture from 
the rest. But as we do not need much legislation, and as 
nearly the whole field of ordinary private law lies outside the 
province of Congress, the mischief is slighter than you Euro- 
peans expect. If we made legislation easier, we might have 
too much of it ; and in trying to give it the more definite char- 
acter you suggest, we might make it too bold and sweeping. 
Be our present system bad or good, it is the only system possi- 
ble under our Constitution, and the fact that it was not directly 
created by that instrument, but has been evolved by the ex- 
perience of a hundred years, shows how strong must be the 
tendencies whose natural working has produced it." 

NOTE TO CHAPTER XV. 

List of Standing and Select Committees of the House in the Fifty- 
second Congress, First Session. (Corrected to May 7. 1892.) 

On Ways and Means ; Appropriations ; Judiciary ; Banking and Cur- 
rency ; Coinage, Weights and Measures ; Commerce ; Riven and Har- 
bours ; Merchant Marine and Fisheries ; Agriculture; Elections; Foreign 
Affairs; Military Affairs; Naval Affairs; Tost Office and Post Roads; 
Public Lands; Indian Affairs ; Territories; Railways and Canals ; Manu- 
factures; Mines and Mining; Public Buildings and Grounds; Pacific 
Railroads; Levees and Improvements of the Mississippi River; Educa- 
tion; Labour; Militia; Patents; Invalid Tensions; Pensions; Claims; 
War Claims ; Private Land Claims; District of Columbia; Revision of 
the Laws ; Expenditures in the state Department ; Do., Treasury Depart- 
ment; Do., War Department ; Do.. Navy Department ; Do., Post Office 
Department; Do., Interior Department; Do., Department of .Justice; 
Do., Agriculture; Do., Public Buildings; Rules; Accounts; Mileage; 
Library; Printing; Enrolled Bills: sdect Committees — Reform in the 

Civil Service ; Election of President and V ice- President ; Eleventh Census ; 
Ventilation and Acoustics; Alcoholic Liquor Traffic ; Irrigation of Arid 
Lands; Immigration and Naturalization; Columbian Exposition; Inves- 
tigation of the Management i^' the Pension Office; investigation of Tax 

Assessments in the District of Columbia. 



CHAPTEE XVI 

CONGRESSIONAL LEGISLATION 

Legislation is more specifically and exclusively the busi- 
ness of Congress than it is the business of governing parlia- 
ments such as those of England, France, and Italy. We must 
therefore, in order to judge of the excellence of Congress as a 
working machine, examine the quality of the legislation which 
it turns out. 

Acts of Congress are of two kinds, public and private. Pass- 
ing by private acts for the present, though they occupy a large 
part of congressional time, 1 let us consider public acts. These 
are of two kinds, those which deal with the law or its administra- 
tion, and those which deal with finance, that is to say, provide 
for the raising and application of revenue. I devote this chap- 
ter to the former class, and the next to the latter. 

There are many points of view from which one may regard 
the work of legislation. I suggest a few only, in respect of 
which the excellence of the work may be tested ; and propose 
to ask : What security do the legislative methods and habits 
of Congress offer for the attainment of the following desirable 
objects ? viz. : — 

1. The excellence of the substance of a bill, i.e. its tendency 
to improve the laAV and promote the public welfare. 

2. The excellence of the form of a bill, i.e. its arrangement 
and the scientific precision of its language. 

3. The harmony and consistency of an act with the other 
acts of the same session. 

4. The due examination and sifting in debate of a bill. 

5. The publicity of a bill, i.e. the bringing it to the knowl- 
edge of the country at large, so that public opinion may be 
fully expressed regarding it. 

1 Some remarks on private bills will be found in Note A to this chapter at 
the end of this volume. 

165 



166 THE NATIONAL GOVERNMENT part i 

6. The honesty and courage of the legislative assembly in 
rejecting a bill, however likely to be popular, which their judg- 
ment disapproves. 

7. The responsibility of some person or body of persons for 
the enactment of a measure, i.e. the fixing on the right shoul- 
ders of the praise for passing a good, the blame for passing 
a bad, act. 

The criticisms that may be passed on American practice 
under the preceding heads will be made clearer by a compari- 
son of English practice. Let us therefore first see how English 
bills and acts stand the tests we are to apply to the work of 
Congress. 

In England public bills fall into two classes, — those brought 
in by the ministry of the day as responsible advisers of the 
sovereign, and those brought in by private members. In point 
of law and in point of form there is no difference between these 
classes. Practically there is all the difference in the world, 
because a government bill has behind it the responsibility of 
the ministry, and presumably the weight of the majority which 
keeps the ministry in office. The ministry dispose of a half o"r 
more of the working time of the House, and have therefore 
much greater facilities for pushing forward their bills. Nearly 
all the most important bills, which involve large political issues. 
are government bills, so that the hostile critic of a private mem- 
ber's bill will sometimes argue that the House ought not to per- 
mit the member to proceed with it, because it is too large tor 
any unofficial hands. This premised, we may proceed to the 
seven points above mentioned. 

1. In England, as the more important bills are government 
bills, their policy is sure to have been carefully weighed. The 
ministry have every motive for rare, because the fortunes of a 
first-class bill are their own fortunes. If it is rejected, they fall. 
A specially difficult bill is usually framed by a committee oi' the 
cabinet, and then debated by the cabinet as a whole before it 
appears in Parliament. .Minor bills are settled in the depart- 
ments by the parliamentary head with his staff o\: permanent 
officials. 

2. In England, government bills are prepared by the official 

government draftsmen, two eminent lawyers with several 
assistants, who constitute an office tor this purpose. Private 



chap, xvi CONGRESSIONAL LEGISLATION 167 

members who are lawyers often draft their own bills ; those 
who are not generally employ a barrister. The drafting of 
government bills has improved of late years, and the faults of 
form still observable in British Acts are chiefly dne to amend- 
ments made hurriedly in committee of the whole House. 

3. The harmony of one government bill with others of the 
same session is secured by the care of the official draftsmen, as 
well as by the fact that all emanate from one and the same 
ministry. No such safeguards exist in the case of private 
members' bills, but it is of course the duty of the ministry to 
watch these legislative essays, and get Parliament to strike 
out of any one of them whatever is inconsistent with another 
measure passed or intended to be passed in the same session. 

4. Difficult and complicated bills which raise no political 
controversy are sometimes referred to a select committee, which 
goes through them and reports them as amended to the House. 
They are afterwards considered, first in committee of the Whole, 
and then by the House on the stage of report from committee 
of the Whole to the House. Such bills are now often referred 
to what are called Grand Committees, i.e. committees of at 
least fifty appointed in each session for the consideration of 
particular kinds of business, discussion in which replaces the 
discussion in committee of the Whole. Many bills, however, 
never go before select or grand committees. While measures 
which excite political feeling or touch any powerful interest 
(such as that of landowners or railroads or liquor-dealers) are 
exhaustively debated, others may slip through unobserved. 
The enormous pressure of work and the prolixity with which 
some kinds of business are discussed, involve the hurrying other 
business through with scant consideration. 

5. Except in the case of discussions at unseasonable hours, 
the proceedings of Parliament are so far reported in the lead- 
ing newspapers and commented on by them that bills, even 
those of private members, generally become known to those 
whom they may concern. There is usually a debate on the 
second reading, and this debate attracts notice. 

6. A government bill is, by the law of its being, exposed to 
the hostile criticism of the Opposition, who have an interest 
in discrediting the ministry by disparaging their work. As re- 
spects private members' bills, it is the undoubted duty of some 



168 THE NATIONAL GOVERNMENT part i 

minister to watch them, and to procure their amendment or re- 
jection if he finds them faulty. This duty is discharged less 
faithfully than might be wished, but perhaps as well as can be 
expected from weak human nature, often tempted to conciliate 
a supporter or an " interest " by allowing a measure to go 
through which ought to have been stopped. 

7. Responsibility for everything done in the House rests 
upon the ministry of the day, because they are the leaders of 
the majority. If they allow a private member to pass a 
bad bill, if they stop him when trying to pass a good bill, 
they are in theory no less culpable than if they pass a bad 
bill of their own. Accordingly, when the second reading of a 
measure of consequence is moved, it is the duty of some member 
of the ministry to rise, with as little delay as possible, and 
state whether the ministry support it, or oppose it, or stand 
neutral. Standing neutral is, so far as responsibility to the 
country goes, practically the same thing as supporting. The 
Opposition, as an organized body, are not expected to express 
their opinion on any bills except those of high political import, 
Needless to say, private members are also held strictly respon- 
sible for the votes they give, these votes being all recorded and 
published next morning. Of course both parties claim praise 
or receive blame from the country in respect of their attitude 
towards bills of moment, and when a session has. produced few 
or feeble Acts the Opposition charge the Ministry with sloth 
or incompetence. 

The rules and usages I have described constitute valuable 
aids to legislation, and the quality of English and Scottish 
legislation, take it all and all, is good ; that is to say, the stat- 
utes are such as public opinion (whether rightly or wrongly) 
demands, and are well drawn for the purposes they aim at. 

Let us now apply the same test to the legislation of Con- 
gress. What follows refers primarily to the House, but is 
largely true of the Senate, because in the Senate also the com- 
mittees play an important part. 

In neither House of Congress are there any government 
bills. All measures are brought in by private members be- 
cause nil members are private. The nearest approach to the 
government bill of England is one brought in by a leading 
member of the majority in pursuance o( a resolution taken in 



chap, xvi CONGRESSIONAL LEGISLATION 169 

the congressional caucus of that majority. This seldom hap- 
pens. One must therefore compare the ordinary congressional 
bill with the English private member's bill rather than with a 
government measure, and expect to find it marked by the 
faults that mark the former class. The second difference is 
that whereas in England the criticism and amendment of a 
bill takes place in committee of the Whole, in the House of 
Representatives it takes place in a small committee of sixteen 
members or less, usually of eleven. In the Senate also the 
committees do most of the work, but the committee of the 
Whole occasionally debates a bill pretty fully. 

Premising these dissimilarities, I go to the seven points 
before mentioned. 

1. The excellence of the substance of a bill introduced in 
Congress depends entirely on the wisdom and care of its in- 
troducer. He may, if self-distrustful, take counsel with his 
political allies respecting it. But there is no security for its 
representing any opinion or knowledge but his own. It may 
affect the management of an executive department, but the 
introducing member does not command departmental informa- 
tion, and will, if the bill passes, have nothing to do with the 
carrying out of its provisions. On the other hand, the officials 
of the government cannot submit bills ; and if they find a 
congressman willing to do so for them, must leave the advo- 
cacy and conduct of the measure entirely in his hands. 

2. The drafting of a measure depends on the pains taken 
and skill exerted by its author. Senate bills are usually well 
drafted because many senators are experienced lawyers : 
House bills are often crude and obscure. There does not 
exist either among the executive departments or in connection 
with Congress, any legal office charged with the duty of pre- 
paring bills, or of seeing that the form in which they pass is 
technically satisfactory. 

3. The only security for the consistency of the various 
measures of the same session is to be found in the fact that 
those which affect the same matter ought to be referred to the 
same committee. However, it often happens that there are 
two or more committees whose spheres of jurisdiction overlap, 
so that of two bills handling cognate matters, one may go to 
Committee A and the other to Committee B. Should different 



170 THE NATIONAL GOVERNMENT part i 

views of policy prevail in these two bodies, they may report 
to the House bills containing mutually repugnant provisions. 
There is nothing except unusual vigilance on the part of some 
member interested, to prevent both bills from passing. That 
mischief from this cause is not serious arises from the fact 
that out of the multitude of bills introduced, few are reported 
and still fewer become law. 

4. The function of a committee of either House of Congress 
extends not merely to the sifting and amending of the bills 
referred to it, but to practically re-drawing them, if the com- 
mittee desires any legislation, or rejecting them by omitting to 
report them till near the end of the session if it thinks no leg- 
islation needed. Every committee is in fact a small bureau of 
legislation for the matters lying within its jurisdiction. It 
has for this purpose the advantage of time, of the right to 
take evidence, and of the fact that some of its members have 
been selected from their knowledge of or interest in the topics 
it has to deal with. On the other hand, it suffers from the 
non-publication of its debates, and from the tendency of all 
small and secret bodies to intrigues and compromises, compro- 
mises in which general principles of policy are sacrificed to 
personal feeling or selfish interest. Bills which go in black 
or white come out gray. They may lose all their distinctive 
colour ; or they may be turned into a medley of scarcely consist- 
ent provisions. The member who has introduced a bill may 
not have a seat on the committee, and may therefore be unable 
to protect his offspring. Other members of the House, masters 
of the subject but not members of the committee, can only be 
heard as witnesses. Although therefore there are fall oppor- 
tunities for the discussion of the bill by the committee, it often 
emerges in an unsatisfactory form, or is quietly suppressed, 
because there is no impetus of the general opinion of the House 
or the public to push it through. When the bill comes back to 
the House the chairman or other reporting member of the com- 
mittee generally moves the previous question, after which no 
amendment can be offered. Debate ceases and the bill is 

promptly passed or lost. In the Senate there is a better chance 
of discussion, for the Senate, having more time and fewer 

speakers, can review to some real purpose the findings of its 
committees. 



chap, xvi CONGRESSIONAL LEGISLATION 171 

5. As there is no debate on the introduction or on the second 
reading of a bill, the public is not necessarily apprised of the 
measures which are before Congress. An important measure 
is of course watched by the newspapers and so becomes known : 
minor measures go unnoticed. 

6. The general good-nature of Americans, and the tendency 
of members of their legislatures to oblige one another by doing 
reciprocal good turns, dispose people to let any bill go through 
which does not injure the interest of a party or of a person. 
Such good-nature counts for less in a committee, because a 
committee has its own views and gives effect to them. But in 
the House there are few views, though much impatience. The 
House has no time to weigh the merits of a bill reported back 
to it. Members have never heard it debated. They know no 
more of what passed in the committee than the report tells 
them. If the measure is palpably opposed to their party tenets, 
the majority will reject it : if no party question arises they 
usually adopt the view of the committee. 

7. What has been said already will have shown that except 
as regards bills of great importance, or directly involving party 
issues, there can be little effective responsibility for legislation. 
The member who brings in a bill is not responsible, because the 
committee generally alters his bill. The committee is little 
observed and the details of what passed within the four walls 
of its room are not published. The great parties in the House 
are but faintly responsible, because their leaders are not bound 
to express an opinion, and a vote taken on a non-partisan bill is 
seldom a strict party vote. Individual members are no doubt 
responsible, and a member who votes against a popular meas- 
ure, one for instance favoured by the working men, will suffer 
for it. 1 But the responsibility of individuals, most of them 
insignificant, half of them destined to vanish, like snow-flakes 
in a river, at the next election, gives little security to the 
people. 

The best defence that can be advanced for this system is that 
it has been naturally evolved as a means of avoiding worse 

1 The member who has taken this course is the worse off, because he rarely 
has an opportunity of explaining by a speech in the House his reason for his 
vote, and is therefore liable to the imputation of having been "got at" by 
capitalists. 



172 THE NATIONAL GOVERNMENT part i 

mischiefs. It is really a plan for legislating by a number of 
commissions. Each commission, receiving suggestions in the • 
shape of bills, taking evidence upon them, and sifting them in -\ 
debate, frames its measures and lays them before the House in * 
a shape which seems designed to make amendment in details 
needless, while leaving the general policy to be accepted or ? 
rejected by a simple vote of the whole body. In this last « 
respect the plan may be compared with that of the Eomans » 
during the Republic, whose general assembly of the peopled 
approved or disapproved of a bill as a whole, without power of , 
amendment, a plan which had the advantage of making laws .•'" 
clear and simple. At Rome, however, bills could be proposed 
only by a magistrate upon his official responsibility ; they were 
therefore comparatively few .#nd sure to be carefully drawn. 
The members of American legislative commissions have no 
special training, no official experience, little praise or blame to 
look for, and no means of securing that the overburdened House 
will ever come to a vote on their proposals. There is no more 
agreement between the views of one commission and another 
than what may result from the fact that the majority in both 
belongs to the same party.- 

Add to the conditions above described the fact that the 
House in its few months of life has not time to deal with one- 
twentieth of the many thousand bills which are thrown upon 
it, that it therefore drops the enormous majorit}^ unconsidered, 
though some of the best may be in this majority, and passes 
most of those which it does pass by a suspension of the rules 
which leaves everything to a single vote/ and the marvel 
comes to be, not that legislation is faulty, but that an intensely 
practical .people tolerates such defective machinery. Some 
reasons maybe suggested tending to explain this phenomenon. 

Legislation is a difficult business in all free countries, and 
perhaps more difficult the more free the country is, because 
the discordant voices are more numerous and less under con- 
trol. America has sometimes sacrificed practical convenience 
to her dislike to authority. 

The Americans surpass all other nations in their power of 
making the best of bad conditions, getting the largest results 

1 This can be done by a two-thirds vote during the last six days of a ^ossion 
and on the first and third Mondays of each month. 



chap, xvi CONGRESSIONAL LEGISLATION 173 

out of scanty materials or rough methods. Many things in 
that country work better than they ought to work, so to speak, 
or could work in any other country, because the people are 
shrewdly alert in minimizing such mischiefs as arise from 
their own haste or heedlessness, and because they have a great 
capacity for self-help. 

Aware that they possess this gift, the Americans are content 
to leave their political machinery unreformecl. Persons who 
propose comprehensive reforms are suspected as theorists and 
crotchet-mongers. The national inventiveness, active in the 
spheres of mechanics and money-making, spends little of its 
force on the details of governmental methods. 

The want of legislation on topics where legislation is needed 
breeds fewer evils than would follow in countries like England 
or France where Parliament is the only law-making body. 
The powers of Congress are limited to comparatively few 
subjects : its failures do not touch the general well-being of 
the people, nor the healthy administration of the ordinary 
law. 

The faults of bills passed by the House are often cured by 
the Senate, where discussion is more leisurely and thorough. 
The committee system produces in that body also some of the 
same flabbiness and colourlessness in bills passed. But the 
blunders, whether in substance or of form, of the one chamber 
are frequently corrected by the other, and many bad bills fail 
owing to a division of opinion between the Houses. 

The President's veto kills off some vicious measures. He 
does not trouble himself about defects of form ; but where a 
bill seems to him opposed to sound policy, it is his constitu- 
tional duty to disapprove it, and to throw on Congress the 
responsibility of passing it " over his veto " by a two-thirds 
vote. A good President accepts this responsibility. 



CHAPTER XVII 



CONGRESSIONAL FINANCE 



Finance is a sufficiently distinct and important department 
of legislation to need a chapter to itself ; nor does any legisla- 
ture devote a larger proportion of its time than does Congress 
to the consideration of financial bills. These are of two kinds: 
those which raise revenue by taxation, and those which direct 
the application of the public funds to the various expenses of 
the government. At present Congress raises all the revenue it 
requires by indirect taxation, 1 and chiefly by duties of customs 
and excise ; so taxing bills are practically tariff bills, the excise 
duties being comparatively little varied from year to year. 

The method of passing both kinds of bills is unlike that of 
most European countries. In England, with which, of course, 
America can be most easily compared, although both the 
levying and the spending of money are absolutely under the 
control of the House of Commons, the House of Commons 
originates no proposal for either. It never cither grants 
money or orders the raising of money except at the request of 
the Crown. Once a year the Chancellor of the Exchequer 
lays before it, together with a full statement of the revenue 
and expenditure of the past twelve months, estimates of the 
expenditure for the, coming twelve months, and suggestions 
for the means of meeting that expenditure by taxation or by 
borrowing. He embodies these suggestions in resolutions on 
which, when the House has accepted them, lulls are grounded 
imposing certain taxes or authorizing the raising oi' a loan. 
The House may of course amend the bills in details, but no 
private member ever proposes a taxing bill, for it is no con- 

1 During the Civil War, direct taxes were levied (the proceeds of which 
have, however, been since returned to the states): and many other kinds of 
taxes besides those mentioned in the text have been imposed at different times. 

171 



chap, xvn CONGRESSIONAL FINANCE 175 

cem of any one except the ministry to fill the public treasury. 1 
The estimates prepared by the several administrative depart- 
ments (Army, Navy, Office of Works, Foreign Office, etc.), 
and revised by the Treasury, specify the items of proposed 
expenditure with much particularity, and fill three or more 
bulky volumes, which are delivered to every member of the 
House. These estimates are debated in committee of the 
whole House, explanations being required from the ministers 
who represent the Treasury and the several departments, and 
are passed in a long succession of separate votes. Members 
may propose to reduce any particular grants, but not to in- 
crease them ; no money is ever voted for the public service 
except that which the Crown has asked for through its minis- 
ters. The Crown must never ask for more than it actually 
needs, and hence the ministerial proposals for taxation are 
carefully calculated to raise just so much money as will easily 
cover the estimated expenses for the coming year. It is reck- 
oned almost as great a fault in the finance minister if he has 
needlessly overtaxed the people, as if he has so undertaxed 
them as to be left with a deficit. If at the end of a year a 
substantial surplus appears, the taxation for next year is 
reduced in proportion, supposing that the expenditure remains 
the same. Every credit granted by Parliament expires of 
itself at the end of the financial year. 

In the United States the Secretary of the Treasury sends 
annually to Congress a report containing a statement of the 
national income and expenditure and of the condition of the 
public debt, together with remarks on the system of taxation 
and suggestions for its improvement. He also sends what is 
called his Annual Letter, enclosing the estimates, framed by 
the various departments, of the sums needed for the public ser- 
vices of the United States during the coming year. So far 
the Secretary is like a European finance minister, except that 
he communicates with the chamber on paper instead of mak- 

1 Of course a private member may carry a resolution involving additional 
expenditure ; but even this is at variance with the stricter constitutional doc- 
trine and practice ; a doctrine regarded by the statesmen of the last generation 
as extremely valuable, because it restrains the propensity of a legislature to 
yield to demands emanating from sections or classes, which may entail heavy 
and perhaps unprofitable charges on the country. See the observations of the 
First Lord of the Treasury in the House of Commons, March 22, 1886. 



176 THE NATIONAL GOVERNMENT pam i 

ing his statement and proposals orally. But here the resem- 
blance stops. Everything that remains in the way of financial 
legislation is done solely by Congress and its committees, the 
executive having no further hand in the matter. 

The business of raising money belongs to one committee 
only, the standing committee of Ways and Means, consisting 
of eleven members. Its chairman is always a leading man in 
the party which commands a majority in the House. This 
committee prepares and reports to the House the bills needed 
for imposing or continuing the various customs duties, excise 
duties, etc. The report of the Secretary has been referred by 
the House to this committee, but the latter does not necessarily 
base its bills upon or in any way regard that report. Neither 
does it in preparing them start from an estimate of the sums 
needed to support the public service. It does not, because it 
cannot : for it does not know what grants for the public ser- 
vice will be proposed by the spending committees, since the 
estimates submitted in the Secretary's letter furnish no trust- 
worthy basis for a guess. It does not, for the further reason 
that the primary object of customs duties has for many years 
past been not the raising of revenue, but the protection of 
American industries by subjecting foreign products to a very 
high tariff. This tariff, which was further raised in 1890, has 
brought in an income far exceeding the current needs of the 
government. Two-thirds of the war debt having been paid 
off, the fixed charges have shrunk to one-third of what they 
were when the war ended, yet this tariff remained till 1890 
with few modifications, surpluses constantly accumulating in 
the national treasury, until in that year a Pension Act was 
passed which increased expenditures so largely as almost to 
absorb even the growing surplus. The committee of Ways 
and Means has therefore had no motive for adapting taxation 
to expenditure. The former will be always in i^xeess so long 
as the protective tariff stands, and the protective tariff stands 
for commercial or political reasons unconnected with national 
finance. 1 

1 For a long time surpluses were got rid of by paying off debt; but when finan- 
ciers began to hold that ;i certain portion of the debt ought to be kept on foot 
for banking and currency purposes, much discussion arose as to how the accu- 
mulating balance should he disposed of. The Pension Act. although partly 



chap, xvn CONGRESSIONAL FINANCE 177 

When the revenue bills come to be debated in committee of 
the whole House similar causes prevent them from being scru- 
tinized from the purely financial point of view. Debate turns 
on those items of the tariff which involve gain or loss to influ- 
ential groups. Little inquiry is made as to the amount needed 
and the adaptation of the bills to produce that amount and no 
more. It is the same with ways and means bills in the Sen- 
ate. Communications need not pass between the committees 
of either House and the Treasury. The person most respon- 
sible, the person who most nearly corresponds to an English 
Chancellor of the Exchequer, or a French Minister of Finance, 
is the chairman of the House committee of Ways and Means. 
But he stands in no official relation to the Treasury, and is 
not required to exchange a word or a letter with its staff. 
Neither, of course, can he count on a majority in the House. 
Though he is a leading man he is not a leader, i.e. he has no 
claim on the votes of his own party, many of whom may disap- 
prove of and cause the defeat of his proposals. This befel in 
1886, when the chairman of this committee, an able man, and 
perhaps, after the Speaker, the most considerable person in 
the Democratic majority, was beaten in his attempted reform 
of the tariff. 

The business of spending money used to belong to the com- 
mittee on Appropriations, but in 1883 a new committee, that 
on Rivers and Harbours, received a large field of expenditure ; 
and in 1886 sundry other supply bills were referred to sun- 
dry standing committees. 1 The committee on appropriations 
starts from, but does not adopt, the estimates sent in by the 
Secretary of the Treasury, for the appropriation bills it pre- 
pares usually make large and often reckless reductions in these 
estimates. The Rivers and Harbours committee proposes 
grants of money for what are called " internal improvements," 
nominally in aid of navigation, but practically in order to turn 
a stream of public money into the State or States where each 

intended to gratify the survivors of the Northern armies in the Civil War, seems 
to have heen also designed to so deplete the Treasury as to remove one reason 
for reducing the protective tariff. 

1 Mr. Woodrow Wilson informs me that the bills so referred were those 
making appropriations for the Consular and Diplomatic Services, for the Army 
and Military Academy, for Naval affairs, for the Post Office, for Indian affairs, 
together absorbing fully half of the whole governmental appropriations. 
VOL. I N 



178 THE NATIONAL GOVERNMENT part i 

" improvement " is to be executed. More money is wasted in 
this way than what the parsimony of the appropriations com- 
mittee can save. Each of the other standing committees, 
including the committee on pensions, a source of infinite 
waste, 1 proposes grants of money, not knowing nor heeding 
what is being proposed by other committees, and guided by 
the executive no further than the members choose. All the 
expenditures recommended must be met by appropriation bills, 
but into their propriety the appropriations committee cannot 
inquire. 

Every revenue bill must, of course, come before the House ; 
and the House, whatever else it may neglect, never neglects the 
discussion of taxation and money grants. These are discussed 
as fully as the pressure of work permits, and are often added 
to by the insertion of fresh items, which members interested 
in getting money voted for a particular purpose or locality 
suggest. These bills then go to the Senate, which forthwith 
refers them to its committees. The Senate committee on 
finance deals with the revenue-raising bills ; the committee on 
appropriations with supply bills. Both sets then come before 
the whole Senate. Although it cannot initiate revenue-raising 
bills, the Senate long ago made good its claim to amend appro- 
priation bills, and does so freely, adding items and often raising 
the total of the grants. When the bills go back to the House, 
the House usually rejects the amendments ; the Senate adheres 
to them, and a Conference committee is appointed, consisting 
of three senators and three members of the House, by which 
a compromise is settled, hastily and in secret, and accepted. 
generally in the last days of the session, by a hard-pressed but 
reluctant House. Even as enlarged by this committee, the 
supply voted is often found inadequate, so a Deficiency bill is 
introduced in the following session, including a second series of 
grants to the departments. 

The European reader will ask how all this is or can be done 
by Congress without frequent communication from or to the 
executive government. There are such communications, for 
the ministers, anxious to secure appropriations adequate for 
their respective departments, talk to the chairmen and appear 

i The annual expenditure on pensions was in iss: s7:>.ooo.<w> ( ta:uH>o,ooo). 
Under the Btatute of 1890, it had risen in lSH'J to si,v,,.i(;4,(V> ■ . - is expected 
to reach 3200,000,000. - 

>v 



chap, xvii CONGRESSIONAL FINANCE 179 

before the committees to give evidence as to departmental 
needs. Bnt Congress does not look to them for guidance as in 
the early days it looked to Hamilton and Gallatin. If the 
House cuts down their estimates they turn to the Senate and 
beg it to restore the omitted items ; if the Senate fail them, 
the only resource left is a Deficiency bill in the next session. 
If one department is so starved as to be unable to do its work, 
while another obtains lavish grants which invite jobbery or 
waste, it is the committees, not the executive, whom the people 
ought to blame. If, by a system of log-rolling, vast sums are 
wasted upon useless public works, no minister has any oppor- 
tunity to interfere, any right to protest. A minister cannot, as 
in England, bring Congress to reason by a threat of resignation, 
for it would make no difference to Congress if the whole 
cabinet were to resign, unless of course the congressmen most 
conspicuously concerned should be so palpably in fault that 
the people could be roused to vigorous disapproval. 

What I have stated may be summarized as follows : 

There is practically no connection between- the policy of 
revenue raising and the policy of revenue spending, for these 
are left to different committees whose views may be opposed, 
and the majority in the House has no recognized leaders to 
remark the discrepancies or make one or other view prevail. 
In the forty-ninth Congress a strong free-trader was chairman 
of the tax-proposing committee on Ways and Means, while a 
strong protectionist was chairman of the spending committee 
on Appropriations. 

There is no relation between the amount proposed to be 
spent in any one year, and the amount proposed to be raised. 
But for the fact that the high tariff has, until quite recently, 
produced a large annual surplus, financial breakdowns must 
have ensued. 

The knowledge and experience of the permanent officials 
either as regards the productivity of taxes, and the incidental 
benefits or losses attending their collection, or as regards the 
nature of various kinds of expenditure and their comparative 
utility, can be turned to account only by interrogating these 
officials before the committees. Their views are not stated in 
the House by a parliamentary chief, nor tested in debate by argu- 
ments addressed to him which he must there and then answer. 



180 THE NATIONAL GOVERNMENT part i 

Little check exists on the tendency of members to deplete 
the public treasury by securing grants for their friends or con- 
stituents, or by putting through financial jobs for which they 
are to receive some private consideration. If either the major- 
ity of the committee on Appropriations or the House itself 
suspects a job, the grant proposed may be rejected. But it is 
the duty of no one in particular to scent out a job, and to de- 
feat it by public exposure. 

The nation becomes so puzzled by a financial policy varying 
from year to year, and controlled by no responsible leaders, as 
to feel diminished interest in congressional discussions and 
diminished confidence in Congress. 1 

The result on the national finance is unfortunate. A 
thoughtful American publicist remarks, " So long as the debit 
side of the national account is managed by one set of men, and 
the credit side by another set, both sets working separately 
and in secret without public responsibility, and without inter- 
vention on the part of the executive official who is nominally 
responsible ; so long as these sets, being composed largely of 
new men every two years, give no attention to business except 
when Congress is in session, and thus spend in preparing plans 
the whole time which ought to be spent in public discussion of 
plans already matured, so that an immense budget is rushed 

i'^The noteworthy fact that even the most thorough debates in Congress 
fail to awaken any genuine or active interest in the minds of the people has 
had its most striking illustrations in the course of our financial legislation, for 
though the discussions which have taken place in Congress upon financial 
questions have been so frequent, so protracted, and so thorough, engrossing a 
large part of the time of the House on their every recurrence, they seem in 
almost every instance to have made scarcely any impression opon the public 
mind. The Coinage Act of 1873, by which silver was demonetized, had been 
before the country many years ere it reached adoption, having been time and 
again considered by committees of Congress, time and again printed and dis- 
cussed in one shape or another, and having finally gained acceptance appar- 
ently by sheer persistence and importunity. The Resumption Act of 1S7.">. too, 
had had a like, career of repeated considerations by committees, repeated 
printings and a. tall discussion by Congress, and yet when the Bland Silver 
Hill of 1878 was on its way through the mills of legislation, some of the most 
prominent newspapers of the eonntn declared with confidence that the Re- 
sumption Act had been passed inconsiderately and in haste; and several mem- 
bers of Congress had previously complained that the demonetization scheme 
of l*7:> had been pushed surreptitiously through the courses of its pae 

Congress having been tricked into accepting il. doing it scarcely knew what." 

- Woodrow Wilson, Congressional Government, p. 148. This remark, how- 
ever, WOUld not apply to the tariff debates oi 1890. 



chap, xvn CONGRESSIONAL FINANCE 181 

through without discussion in a week or ten days — just so 
long the finances will go from bad to worse, no matter by what 
name you call the party in power. No other nation on earth 
attempts such a thing, or could attempt it without soon coming 
to grief, our salvation thus far consisting in an enormous in- 
come, with practically no drain for military expenditure." 

It may be replied to this criticism that the enormous in- 
come, added to the fact that the tariff is imposed for protection 
rather than for revenue, is not only the salvation of the United 
States Government under the present system, but also the 
cause of that system. Were the tariff framed with a view to 
revenue only, no higher taxes would be imposed than the 
public service required, and a better method of balancing the 
public accounts would follow. This is true. The present 
state of things is evidently exceptional. America is the only 
country in the world whose difficulty is not to raise money but 
to spend it. 1 But it is equally true that Congress is contract- 
ing lax habits, and ought to change them. 

How comes it, if all this be true, that the finances of 
America are so flourishing, and in particular that the public 
debt has been paid off with such regularity and speed that 
from $3,000,000,000 (£600,000,000) in 1865, it had sunk to 
$1,000,000,000 (£200,000,000) in 1890 ? Does not so brilliant 
a result speak of a continuously wise and skilful management 
of the national revenue ? 

The paying off of the debt seems to be due to the following 
causes : — 

To the prosperity of the country which, with one interval of 
trade depression, has for twenty-five years been developing its 
amazing natural resources so fast as to produce an amount of 
wealth which is not only greater, but probably more widely dif- 
fused through the population, than in any other part of the world. 

To the spending habits of the people, who allow themselves 
luxuries such as the masses enjoy in no other country, and 
therefore pay more than any other people in the way of indirect 

1 For twenty-eight years there have been surpluses, the smallest of $2,344,000 
in 1874, the largest of $145,543,000 in 1882. The surplus for the year ending 
30th June 1890 was about $44,000,000. The receipts from customs alone were 
greater by about $48,000,000 in 1890 than in 1885. The total revenue of the year 
ending June 30, 1892, was $425,000,000, and the total expenditure $415,000,000, 
the receipts from customs duties having declined, and the expenditure, espe- 
cially on pensions, having increased. 



182 THE NATIONAL GOVERNMENT part i 

taxation. The fact that Federal revenue is raised by duties of 
customs and excise makes the people far less sensible of the 
pressure of taxation than they would be did they pay directly. 

To the absence of the military and naval charges which press 
so heavily on European states. 

To the maintenance of an exceedingly high tariff at the 
instance of interested persons who have obtained the public 
ear and can influence Congress. It is the acceptance of the 
policy of Protection, rather than any deliberate conviction 
that the debt ought to be paid off, that has caused the continu- 
ance of a tariff whose huge and constant surpluses have enabled 
the debt to be reduced. 

Europeans, admiring and envying the rapidity with which 
the war debt has been reduced, have been disposed to credit the 
Americans with brilliant financial skill. That, however, which 
was really admirable in the conduct of the American people 
was not their judgment in selecting particular methods for rais- 
ing money, but their readiness to submit during and immedi- 
ately after the war to unprecedentedly heavy taxation. The 
interests (real or supposed) of the manufacturing classes have 
caused the maintenance of the tariff then imposed; nature, by 
giving the people a spending power which has rendered the 
tariff marvellously productive, has done the rest. 

Under the system of congressional finance here described 
America wastes millions annually. But her wealth is so great, 
her revenue so elastic, that she is not sensible of the loss. She 
has the glorious privilege of youth, the privilege of committing 
errors without suffering from their consequences, 



CHAPTETC XVTII 

THE RELATIONS OF THE TWO HOUSES 

The creation by the Constitution of 1789 of two chambers in 
the United States, in place of the one chamber which existed 
under the Confederation, has been usually ascribed by Euro- 
peans to mere imitation of England ; and one learned writer 
goes so far as to suggest that if England had possessed three 
chambers, like the States General of France, or four, like the 
Diet of Sweden, a crop of three-chambered or four-chambered 
legislatures would, in obedience to the example of happy and 
successful England, have sprung up over the world. There 
were, however, better reasons than deference to English prec- 
edents to justify the division of Congress into two houses and 
no more ; and so many indubitable instances of such a defer- 
ence may be quoted that there is no need to hunt for others. 
Not to dwell upon the fact that there were two chambers in 
all but two l of the thirteen original States, the Convention of 
1787 had two solid motives for fixing on this number, a motive 
of principle and theory, a motive of immediate expediency. 

The chief advantage of dividing a legislature into two 
branches is that the one may check the haste and correct the 
mistakes of the other. This advantage is purchased at the 
price of some delay, and of the weakness which results from a 
splitting up of authority. If a legislature be constituted of 
three or more branches, the advantage is scarcely increased, the 
delay and weakness are immensely aggravated. Two chambers 
can be made to work together in a way almost impossible to 
more than two. As the proverb says, "Two's company, three's 
none." If there be three chambers, two are sure to intrigue 
and likely to combine against the third. The difficulties of 

1 Pennsylvania and Georgia ; the former of which added a Senate in 1789, 
the latter in 1790. See post, Chapter XXXIX. on State Legislatures. 

183 



184 THE NATIONAL GOVERNMENT pam i 

carrying a measure without sacrificing its unity of principle, of 
fixing responsibility, of securing the watchful attention of the 
public, serious with two chambers, become enormous with three 
or more. 

To these considerations there was added the practical ground 
that the division of Congress into two houses supplied a means 
of settling the dispute which raged between the small and the 
large States. The latter contended for a representation of the 
States in Congress proportioned to their respective populations, 
the former for their equal representation as sovereign common- 
wealths. Both were satisfied by the plan which created two 
chambers in one of which the former principle, in the other of 
which the latter principle was recognized. The country re- 
mained a federation in respect of the Senate, it became a nation 
in respect of the House : there was no occasion for a third 
chamber. 

The respective characters of the two bodies are wholly un- 
like those of the so-called upper and lower chambers of Europe. 
In Europe there is always a difference of political complex- 
ion, generally resting on a difference in personal composition. 
There the upper chamber represents the aristocracy of the 
country, or the men of wealth, or the high officials, or the 
influence of the Crown and Court ; while the lower chamber 
represents the multitude. Between the Senate and the House 
there is no such difference. Both equally represent the people, 
the whole people, and nothing but the people. The individual 
members come from the same classes of the community ; and 
though there are more rich men (in proportion to numbers) in 
the Senate than in the House, the influence of capital is not 
markedly greater. Both have been formed by the same social 
influences: and the social pretensions of a senator expire with 
his term of office. Both are possessed by the same ideas, 
governed by the same sentiments, equally conscious of their 
dependence on public opinion. The cue lias never been, like 
the English House of Commons, a popular pet, the other never, 
like tin 1 English House of Lords, a popular bugbear. 

What is perhaps stranger, the two branches of Congress have 

not exhibited thai contrast of feeling and policy which might 

he expected from the different methods by which they are 

chosen. In tic House the Large States are predominant: ten 



chap, xvin 11ELATI0NS OF THE TWO HOUSES 185 

out of forty-four (less than one-fourth) return an absolute 
majority of the 332 representatives. In the Senate these same 
ten States have only twenty members out of eighty-eight, less 
than a fourth of the whole. In other words, these ten States 
are more than sixteen times as powerful in the House as they 
are in the Senate. But as the House has never been the organ 
of the large States, nor prone to act in their interest, so neither 
has the Senate been the stronghold of the small States, for 
American politics have never turned upon an antagonism be- 
tween these two sets of commonwealths. Questions relating 
to States' rights and the greater or less extension of the powers 
of the national government have played a leading part in the 
history of the Union. But although small States might be 
supposed to be specially zealous for States' rights, the tendency 
to uphold them has been no stronger in the Senate than in the 
House. In one phase of the slavery struggle the Senate hap- 
pened to be under the control of the slaveholders while the 
House was not ; and then of course the Senate championed 
the sovereignty of the States. But this attitude was purely 
accidental, and disappeared with its transitory cause. 

The real differences between the two bodies are due to the 
smaller size of the Senate, and the consequent greater facilities 
for debate, to the somewhat superior capacity of its members, 
to the habits which its executive functions form in individual 
senators, and have formed in the whole body. 

In Europe, where the question as to the utility of second 
chambers is actively canvassed, two objections are made to 
them, one that they deplete the first or popular chamber of 
able men, the other that they induce deadlocks and consequent 
stoppage of the wheels of government. On both arguments 
light may be expected from American experience. 

Although the Senate does draw off from the House many of 
its ablest men, it is not clear, paradoxical as the observation 
may appear, that the House would be much the better for re- 
taining those men. The faults of the House are mainly due, 
not to want of talent among individuals, but to its defective 
methods, and especially to the absence of leadership. These 
are faults which the addition of twenty or thirty able men 
would not cure. Some of the committees would be stronger, 
and so far the work would be better done. But the House as 



186 THE NATIONAL GOVERNMENT part i 

a whole would not (assuming its rules and usages to remain 
what they are now) be distinctly a greater power in the coun- 
try. On the other hand, the merits of the Senate are largely 
due to the fact that it trains to higher efficiency the ability which 
it has drawn from the House, and gives that ability a sphere 
in which it can develop with better results. Were the Senate 
and the House thrown into one, the country would suffer more, 
I think much more, by losing the Senate than it would gain by 
improving the House, for the united body would have the qual- 
ities of the House and not those of the Senate. 

Collisions between the two Houses are frequent. Each is 
jealous and combative. Each is prone to alter the bills that 
come from the other; and the Senate in particular knocks 
about remorselessly those favourite children of the House, the 
appropriation bills. The fact that one House has passed a bill 
goes but a little way in inducing the other to pass it ; the Sen- 
ate would reject twenty House bills as readily as one. Dead- 
locks, however, disagreements over serious issues which stop 
the machinery of administration, are not common. They rarely 
cause excitement or alarm outside Washington, because the 
country, remembering previous instances, feels sure they will 
be adjusted, and knows that either House would yield were it 
unmistakably condemned by public opinion. The executive gov- 
ernment goes on undisturbed, and the worst that can happen is 
the loss of a bill which may be passed four months later. Even 
as between the two bodies there is no great bitterness in these 
conflicts, because the causes of quarrel do not lie deep. Some- 
times it is self-esteem that is involved, the sensitive self-esteem 
of an assembly. Sometimes one or other House is playing for 
a party advantage. That intensity which in the similar con- 
tests of Europe arises from class feeling is absent, because there 
is no class distinction between the two American chambers. 
Thus the country seems to be watching a fencing match rather 
than a combat a outrance. 

I dwell upon this substantial identity of character in the 
Senate and the House because it explains the fact, surprising 
toaEuropean, that two perfectly co-ordinate authorities, neither 
of which has any more right than its rival to claim to speak 
for the whole nation, manage to gel along together. Their 
quarrels arc professional and personal rather than conflicts of 



chap, xvin RELATIONS OF THE TWO HOUSES 187 

adverse principles. The two bodies are not hostile elements in 
the nation, striving for supremacy, but servants of the same 
master, whose word of rebuke will quiet them. 

It must, however, be also remembered that in such countries 
as England, France, and Italy, the popular chamber stands in 
very close relation with the executive government, which it has 
virtually installed and which it supports. A conflict between 
the two chambers in such countries is therefore a conflict to which 
the executive is a party, involving issues which may be of the 
extremest urgency ; and this naturally intensifies the struggle. 
For the House of Lords in England or the Senate in Italy to 
resist a demand for legislation made by the ministry, who are 
responsible for the defence and peace of the country, and 
backed by the representative House, is a more serious matter 
than almost any collision between the Senate and the House can 
be in America. 1 

The United States is the only great country in the world in 
which the two Houses are really equal and co-ordinate. Such 
a system could hardly work, and therefore could not last, if the 
executive were the creature of either or of both, nor unless both 
were in close touch with the sovereign people. 

When each chamber persists in its own view, the regular pro- 
ceeding is to appoint a committee of conference, consisting of 
three members of the Senate and three of the House. These 
six meet in secret, and generally settle matters by a compro- 
mise, which enables each side to retire with honour. When 
appropriations are involved, a sum intermediate between the 
smaller one which the House proposes to grant and the larger 
one desired by the Senate is adopted. If no compromise can 
be arranged, the conflict continues till one side yields or it ends 
by an adjournment, which of course involves the failure of the 
measure disagreed upon. The House at one time tried to 
coerce the Senate into submission by adding "riders," as they 
are called, to appropriation bills, i.e. annexing or "tacking" 
(to use the English expression) pieces of general legislation to 
bills granting sums of money. This puts the Senate in the 

1 Of course a case may be imagined in which the President should ask for 
legislation, as Lincoln did during the war, and one House of Congress should 
grant, the other refuse, the Acts demanded. But such cases are less likely to 
occur in America than in Europe under the Cabinet system. 



188 THE NATIONAL GOVERNMENT part i 

dilemma of either accepting the unwelcome rider, or rejecting 
the whole bill, and thereby withholding from the executive the 
funds it needs. This happened in 1855 and 1856. However, 
the Senate stood firm, and the House gave way. The device 
had previously been attempted (in 1849) by the Senate in tack- 
ing a pro-slavery provision to an appropriation bill which it was 
returning to the House, and it was revived by both Houses 
against President Andrew Johnson in 1867. 

In a contest the Senate usually, though not invariably, gets 
the better of the House. It is smaller, and can therefore more 
easily keep its majority together ; its members are more ex- 
perienced ; and it has the great advantage of being permanent, 
whereas the House is a transient body. The Senate can hold 
out, because if it does not get its way at once against the 
House, it may do so when a new House comes up to Washing- 
ton. The House cannot afford to wait, because the hour of its 
own dissolution is at hand. Besides, while the House does not 
know the Senate from inside, the Senate, many of whose mem- 
bers have sat in the House, knows all the " ins and outs " of 
its rival, can gauge its strength and play upon its weakness. 



CHAPTER XIX 

GENERAL OBSERVATIONS ON CONGRESS 

After this inquiry into the composition and working of each 
branch of Congress, it remains for me to make some observa- 
tions which apply to both Houses, and which may tend to indi- 
cate the features that distinguish them from the representative 
assemblies of the Old World. The European reader must bear 
in mind three points which, in following the details of the last 
few chapters, he may have forgotten. The first is that Con- 
gress is not like the Parliaments of England, France, and 
Italy, a sovereign assembly, but is subject to the Constitution, 
which only the people can change. The second is, that it 
neither appoints not dismisses the executive government, which 
springs directly from popular election. The third is, that its 
sphere of legislative action is limited by the existence of forty- 
four governments in the several States, whose authority is just 
as well based as its own, and cannot be curtailed by it. 

I. The choice of members of Congress is locally limited by 
law and by custom. Under the Constitution every represen- 
tative and every senator must when elected be an inhabitant 
of the State whence he is elected. Moreover, State law has 
in many and custom practically in all States, established that 
a representative must be resident in the congressional district 
which elects him. 1 The only exceptions to this practice occur 
in large cities where occasionally a man is chosen who lives in 
a different district of the city from that which returns him ; 

1 The best legal authorities hold that a provision of this kind is invalid, 
because State law has no power to narrow the qualifications for a Federal 
representative prescribed by the Constitution of the United States. And Con- 
gress would probably so hold if the question arose in a case brought before it 
as to a disputed election. So far as I have been able to ascertain, the point 
has never arisen for determination. 



190 THE NATIONAL GOVERNMENT tart i 

but such exceptions are rare. 1 This restriction, inconvenient 
as it is both to candidates, whose field of choice in seeking a 
constituency it narrows, and to constituencies, whom it debars 
from choosing persons, however eminent, who do not reside in 
their midst, seems to Americans so obviously reasonable that 
few persons, even in the best educated classes, will admit its 
policy to be disputable. In what are we to seek the causes of 
this opinion ? 

First. In the existence of States, originally separate politi- 
cal communities, still for many purposes independent, and accus- 
tomed to consider the inhabitant of another State as almost a 
foreigner. A New Yorker, Pennsylvania's would say, owes 
allegiance to New York ; he cannot feel and think as a citizen 
of Pennsylvania, and cannot therefore properly represent 
Pennsylvanian interests. This sentiment has spread by a sort 
of sympathy, this reasoning has been applied by a sort of 
analogy, to the counties, the cities, the electoral districts of 
the State itself. State feeling has fostered local feeling ; the 
locality deems no man a fit representative who has not by 
residence in its limits, and by making it his political home, 
the place where he exercises his civic rights, become soaked 
with its own local sentiment. 

Secondly. Much of the interest felt in the proceedings of 
Congress relates to the raising and spending of money. 
Changes in the tariff may affect the industries of a locality ; 
or a locality may petition for an appropriation of public funds 
to some local public work, the making of a harbour, or the 
improvement of the navigation of a river. In both cases it is 
thought that no one but an inhabitant can duly comprehend the 
needs or zealously advocate the demands of a neighbourhood. 

Thirdly. Inasmuch as no high qualities o\' statesmanship 
are expected from a congressman, a district would think it a 
slur to be told that it ought to look beyond its own borders for 
a representative; and as the post is a paid one. the people feci 
that a good thing ought to he kept for one of themselves 
rather than thrown away on a stranger. It is by local politi- 

1 However, in 1890 one <>i' the candidates tor the tilth congressional district 
of Massachusetts was not a resident iii that district, and was not thought to 
have Buffered seriously on that aeeonnt. Sometimes a man mOTOS into a dis- 
trict in order to he eliosen there. 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 191 

cal work, organizing, canvassing, and haranguing, that a party 
is kept going : and this work must be rewarded. 

A perusal of the chapter of the Federalist, which argues 
that one representative for 30,000 inhabitants will sufficiently 
satisfy republican needs, suggests another reflection. The 
writer refers to some who held a numerous representation to 
be a democratic institution, because it enabled every small dis- 
trict to make its voice heard in the national Congress. Such 
representation then existed in the State legislatures. Evi- 
dently the habits of the people were formed by these State legis- 
latures, in which it was a matter of course that the people of 
each township or city sent one of themselves to the assembly 
of the State. When they came to return members to Con- 
gress, they followed the same practice. A stranger had no 
means of making himself known to them and would not think 
of offering himself. That the habits of England are different 
may be due, so far as the eighteenth century is concerned, to 
the practice of borough-mongering, under which candidates 
unconnected with the place were sent down by some influen- 
tial person, or bought the seat from the corrupt corporation or 
the limited body of freemen. Thus the notion that a stranger 
might do well enough for a borough grew up, while in counties 
it remained, till 1885, a maxim that a candidate ought to own 
land in the county 1 — the old law required a freehold qualifi- 
cation somewhere — or ought to live in, or ought at the very 
least (as I once heard a candidate, whose house lay just out- 
side the county for which he was standing, allege on his own 
behalf) to look into the county from his window while shaving 
in the morning. 2 The English practice might thus seem to 
be an exception due to special causes, and the American prac- 

1 The old law (9 Anne, c. 5) required all members to possess a freehold 
qualification somewhere. All property qualifications were abolished by 
statute in 1858. 

2 The English habit of allowing a man to stand for a place with which he is 
personally unconnected would doubtless be favoured by the fact that many 
ministers are necessarily members of the House of Commons. The inconven- 
ience of excluding a man from the service of the nation because he could not 
secure his return in the place of his residence would be unendurable. No such 
reason exists in America, because ministers cannot be members of Congress. 
In France, Germany, and Italy the practice resembles that of England, i.e. 
many members sit for places where they do not reside, though a candidate 
residing in the place he stands for has a certain advantage. 

It is remarkable that the original English practice required the member to 



192 THE NATIONAL GOVERNMENT past i 

tice that which is natural to a free country, where local self- 
government is fully developed and rooted in the habits of the 
people. It is from their local government that the political 
ideas of the American people have been formed : and they 
have applied to their State assemblies and their national 
assembly the customs which grew up in the smaller area. 1 

These are the best explanations I can give of a phenomenon 
which strikes Europeans all the more because it exists among 
a population more unsettled and migratory than any in the 
Old World. But they leave me still surprised at this strength 
of local feeling, a feeling not less marked in the new regions 
of the Far West than in the venerable commonwealths of 
Massachusetts and Virginia. Fierce as is the light of criticism 
which beats upon every part of that system, this point remains 
uncensured, because assumed to be part of the order of nature. 

So far as the restriction to residents in a State is concerned 
it is intelligible. The senator was originally a sort of am- 
bassador from his State. He is chosen by the legislature or 
collective authority of his State. He cannot well be a citizen 
of one State and represent another. Even a representative in 
the House from one State who lived in another might be per- 

be a resident of the county or borough which returned him to Parliament. 
This is said to be a requirement at common law (witness the words " de eonii- 
tatu tuo" in the writ for the election addressed to the sheriff) ; and was ex- 
pressly enacted by the statute 1 Henry V. cap. 1. But already in the time of 
Elizabeth the requirement was not enforced; and in 1681 Lord Chief-Justice 
Pemberton ruled that " little regard was to he had to that ancient statute 1 
Henry V. forasmuch as common practice hath been ever since to the con- 
trary." The statute was repealed by 14 Geo. III. cap. f)0. — See Anson. Law 
and Custom of the Constitution, vol. i. p. 8-'5: Stubbs, Constit. Hist., vol. iii. 
p. 424. Dr. Stubbs observes that the object of requiring residence in early 
times was to secure " that t He House of Commons should he a really represen- 
tative body." Mr. Hearn (Government Of England) suggests that the require- 
ment had to be dropped because it was hard to find country gentlemen (or 
indeed burgesses) possessing the legal knowledge and statesmanship which the 
constitutional struggles of the sixteenth and seventeenth centuries demanded. 

1 When President (iartield was one o( the leaders of the House of Represen- 
tatives it happened that his return for the district in which he resided became 
doubtful, owing to the strength of the Democratic party there. One of his 
friends (to whom I owe tin 1 anecdote), anxious to make sure that he should 
somehow he returned to tin 1 House, went into the adjoining district to sound 

the Republican voters there as to the propriety o\' running Mr. Garfield for 
their constituency. They laughed at the notion, " Why, he don't live in our 

deestriet." 1 have heard of a case in which a member of Congress having 

after bis election gone to live in a neighbouring district, was thereupon com- 
pelled by the pressure of public opinion to resign his seat. 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 193 

plexed by a divided allegiance, though, there are groups of 
States, such as those of the north-west, whose great industrial 
interests are substantially the same. But what reason can 
there be for preventing a man resident in one part of a State 
from representing another part, a Philadelphian, for instance, 
from being returned for Pittsburg, or a Bostonian for Lenox 
in the west of Massachusetts ? In Europe it is not found that 
a member is less active or successful in urging the local 
interests of his constituency because he does not live there. 
He is often more successful, because more personally influen- 
tial or persuasive than any resident whom the constituency 
could supply ; and in case of a conflict of interests he always 
feels his efforts to be owing first to his constituents, and not 
to the place in which he happens to reside. 

The mischief is twofold. Inferior men are returned, be- 
cause there are many parts of the country which do not grow 
statesmen, where nobody, or at any rate nobody desiring to 
enter Congress, is to be found above a moderate level of polit- 
ical capacity. And men of marked ability and zeal are pre- 
vented from forcing their way in. Such men are produced 
chiefly in the great cities of the older States. There is not 
room enough there for nearly all of them, but no other doors 
to Congress are open. Boston, New York, Philadelphia, Bal- 
timore, could furnish six or eight times as many good mem- 
bers as there are seats in these cities. As such men cannot 
enter from their place of residence, they do not enter at all, 
and the nation is deprived of the benefit of their services. 
Careers are moreover interrupted. A promising politician 
may lose his seat in his own district through some fluctuation 
of opinion, or perhaps because he has offended the local wire- 
pullers by too much independence. Since he cannot find a seat 
elsewhere he is stranded ; his political life is closed, while other 
young men inclined to independence take warning from his fate. 
Changes in the State laws would not remove the evil, for the 
habit of choosing none but local men is rooted so deeply that it 
would probably long survive the abolition of a restrictive law, 
and it is just as strong in States where no such law exists. 1 

1 In Maryland, a State almost divided into two parts by Chesapeake Bay, it 
is the invariable practice that one of the two senators should be chosen from 
the residents east of the bay, the other from those of the western shore. 
VOL. I O 



194 THE NATIONAL GOVERNMENT part i 

II. Every senator and representative receives a salary at 
present fixed at $5000 (£1000) per annum, besides an allow- 
ance (called mileage) of 20 cents (lOd.) per mile for travelling 
expenses to and from Washington, and $125 (£25) for sta- 
tionery. The salary is looked upon as a matter of course. It 
was not introduced for the sake of enabling working men to 
be returned as members, but on the general theory that 
all public work ought to be paid for. 1 The reasons for it 
are stronger than in England or France, because the distance 
to Washington from most parts of the United States is so great, 
and the attendance required there so continuous, that a man 
cannot attend to his profession or business while sitting in 
Congress. If he loses his livelihood in serving the community, 
the community ought to compensate him, not to add that the 
class of persons whose private means put them above the need 
of a lucrative calling, or of compensation for interrupting it. is 
comparatively small even now, and hardly existed when the 
Constitution was framed. Cynics defend the payment of con- 
gressmen on another ground, viz. that "they would steal 
worse if they didn't get it," and would make polities, as Napo- 
leon made war, support itself. Be the thing bad or good, it is 
at any rate necessary, so that no one talks of abolishing it. 
For that reason its existence furnishes no argument for its 
introduction into a small country with a large leisured and 
wealthy class. In fact, the conditions of European countries 
are so different from those of America that one must not cite 
American experience either for or against the remuneration of 
legislative work. I do not believe that the practice works ill 
by preventing good men from entering politics, for they feel 
no more delicacy in accepting their $5000 than an English 
duke does in drawing his salary as a secretary of state. It 
may strengthen tin 1 tendency of members to regard themselves 
as mere delegates, but that tendency lias other and deeper 
roots. It contributes to keep up a class of professional poli- 
ticians, for the salary, though small in comparison with the 
incomes earned by successful merchants or lawyers, is a prize 
to men of bhe class whence professional politicians mostly 

1 Benjamin Franklin argued Btrongly In the Convention of its; against this 
theory, bul found little support. See his remarkable speech in Mr. John Bige- 

low's I. in of Franklin, vol. in. i>. 389. 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 195 

come. But those European writers who describe it as the 
formative cause of that class are mistaken. That class would 
have existed had members not been paid, would continue to 
exist if payment were withdrawn. On the other hand, the 
benefit which Europeans look for from the payment of legis- 
lators, viz. the introduction of a large number of representative 
working men, has hitherto been little desired and nowise se- 
cured. Eew such persons appear as candidates in America; 
and until recently the working class has not deemed itself, nor 
acted as, a distinct body with special interests. 1 

In 1873 Congress passed an act increasing many official 
salaries, and among others those of senators and represen- 
tatives, which it raised from $5000 to $7500 (£1500) . All the 
increases were to take effect for the future only, except that of 
congressional salaries, which was made retroactive. This un- 
blushing appropriation by Congress of nearly $200,000 to them- 
selves roused so much indignation that the act, save as to the 
salaries of the President and Eederal judges, was repealed by 
the next Congress. It is known as the " back-pay grab." 

III. A congressman's tenure of his place is usually short. 
Senators are sometimes returned for two, three, or even four 
successive terms by the legislatures of their States, although it 
may befall even the best of them to be thrown out by a change 
in the balance of parties, or by the intrigues of an opponent. 
But a member of the House can seldom feel safe in the saddle. 
If he is so eminent as to be necessary to his party, or if he 
maintains intimate relations with the leading local wire-pullers 
of his district, he may in the eastern and middle, and still 
more in the southern States, hold his ground for three or four 
Congresses, i.e. for six or eight years. Few do more than this. 
In the West a member is fortunate if he does even this. Out 
there a seat is regarded as a good thing which ought to go 
round. It has a salary. It sends a man, free of expense, for 
two winters and springs to Washington and lets him see some- 
thing of the fine world there, where he rubs shoulders with 
ambassadors from Europe. Local leaders cast sheep's eyes at 

1 In Victoria (Australia), members of the popular house receive a salary of 
£300 a year ; and payment is the rule in the British self-governing colonies. In 
France and some at least of the German states (though not in the Reichstag) 
representatives are paid. In Italy they receive no salary, but a free pass over 
the railroads. 



196 THE NATIONAL GOVERNMENT pabt i 

the seat, and make more or less open bargains between them- 
selves as to the order in which they shall enjoy it. So far 
from its being a reason for re-electing a man that he has been 
a member already, it is a reason for passing him b} r , and giving 
somebody else a turn. Rotation in office, dear to the Demo- 
crats of Jefferson's school a century ago, still charms the less 
educated, who see in it a recognition of equality, and have no 
sense of the value of special knowledge or training. They 
like it for the same reason that the democrats of Athens liked 
the choice of magistrates by lot. It is a recognition and appli- 
cation of equality. An ambitious congressman is therefore 
forced to think day and night of his re-nomination, and to 
secure it not only by procuring, if he can, grants from the 
Federal treasury for local purposes, and places for the relatives 
and friends of the local wire-pullers who control the nomi- 
nating conventions, but also by sedulously "nursing*' the 
constituency during the vacations. No habit could more effect- 
ually discourage noble ambition or check the growth of a class 
of accomplished statesmen. There are few walks of life in 
which experience counts for more than it does in parliamentary 
politics. It is an education in itself, an education in which 
the quick-witted western American would make rapid progress 
were he suffered to remain long enough at Washington. At 
present he is not suffered, for nearly one half of each successive 
house consists of new men, while the old members are too much 
harassed by the trouble of procuring their re-election to have 
time or motive for the serious study of political problems. 
This is what comes of the doctrine that a member ought to be 
absolutely dependent on his constituents, and of the notion 
that politics is neither a science, nor an art. nor even an occu- 
pation, like farming or store-keeping, in which one learns by 
experience, but a thing that comes by nature, and for which one 
man of common sense is as fit as another. 

IV. The last-mentioned evil is aggravated by the short 
duration of a Congress. Short as it seems, the two years' term 
was warmly opposed, when the Constitution was framed, as 
being too long. 1 The constitutions of the several States. 

1 In the Massachusetts Convention of 1788, when Hiis question was being <lis- 
enssra. "General Thomson then broke out into the following pathetic apos- 
trophe, ' my count i-y, never give up your annual elections : young men. never 
give up your jewel.' Be apologized Corhis zeal. "—Elliot's Debates, vol. ii. p. 16. 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 197 

framed when they shook off the supremacy of the British 
Crown, all fixed one year, except the ultra-democratic Connect- 
icut and Rhode Island, where under the colonial charters a 
legislature met every six months, and South Carolina, which 
had fixed two years. So essential to republicanism was this 
principle deemed, that the maxim "where annual elections 
end tyranny begins " had passed into a proverb ; and the 
authors of the Federalist were obliged to argue that the limited 
authority of Congress, watched by the executive on one side, 
and the State legislatures on the other, would prevent so long 
a period as two years from proving dangerous to liberty, while 
it was needed in order to enable the members to master the laws 
and understand the conditions of different parts of the Union. 
At present the two years' term is justified on the ground 
that it furnishes a proper check on the President by inter- 
posing an election in the middle of his term. One is also told 
that these frequent elections are necessary to keep up popular 
interest in current politics, nor do some fail to hint that the 
temptations to jobbing would overcome the virtue of members 
who had a longer term before them. Where American opinion 
is unanimous, it would be presumptuous for a stranger to 
dissent. Yet the remark may be permitted that the dangers 
originally feared have proved chimerical. There is no country 
whose representatives are more dependent on popular opinion, 
more ready to trim their sails to the least breath of it. The 
public acts, the votes, and speeches of a member from Oregon 
or Texas can be more closely watched by his constituents than 
those of a Virginian member could be watched in 1789. 1 And 
as the frequency of elections involves inexperienced members, 
the efficiency of Congress suffers. 

V. The numbers of the two American houses seem small to a 
European when compared on the one hand with the population 
of the country, on the other with the practice of European 
states. The Senate has 88 members against the British House 
of Lords with about 550, and the French Senate with 300. 
The House has (election of 1892) 356 against the British 
House of Commons with 670, and the French and Italian 
Chambers with 584 and 508 respectively. 

1 Of course his conduct in committee is rarely known, but I doubt whether 
the shortness of the term makes him more scrupulous. 



198 THE NATIONAL GOVERNMENT part i 

The Americans, however, doubt whether both their Houses 
have not already become too large. They began with 26 in 
the Senate, 65 in the House, numbers then censured as too 
small, but which worked well, and gave less encouragement to 
idle talk and vain display than the crowded halls of to-day. 
The inclination of wise men is to stop further increase when 
the number of 400 has been reached, for they perceive that the 
House already suffers from disorganization, and fear that a 
much larger one would prove unmanageable. 1 

VI. American congressmen are more assiduous in their 
attendance than the members of most European legislatures. 
The great majority not only remain steadily at Washington 
through the session, but are usually to be found in the Capitol, 
often in their Chamber itself, while a sitting lasts. There is 
therefore comparatively little trouble in making the quorum 
of one half, 2 except when the minority endeavours to prevent 

1 There is force in the following observations which I copy from the 54th and 
57th numbers of the Federalist : — "A certain number at least seems necessary 
to secure the benefits of free consultation and discussion, and to guard against 
too easy a combination for improper purposes; as on the other hand, the num- 
ber ought to be kept within a certain limit in order to avoid the confusion and 
intemperance of a multitude. In all very numerous assemblies, of whatever 
characters composed, passion never fails to wrest the sceptre from reason. Had 
every Athenian citizen been a Socrates, every Athenian assembly would still 
have been a mob. ... In all legislative assemblies, the greater the number 
comprising them may be, the fewer will be the men who will in fact direct their 
proceedings. The larger the number, the greater will be the proportion of 
members of limited information and of weak capacities. Now it is precisely 
on characters of this description that the eloquence and address of the few are 
known to act with all their force. In the ancient republics where the whole 
body of the people assembled in person, a single orator, or an artful statesman. 
was generally seen to rule with as complete a sway as if a sceptre had been 
placed in his single hand. On the same principle the more multitudinous a 
representative assembly may be rendered, the nunc it will partake of the in- 
firmities incident to collective meetings of the people. Ignorance will be the 
dupe of cunning, and passion the slave of sophistry and declamation. The 
people can never err more than in supposing thai by multiplying their repre- 
sentatives beyond a certain limit they strengthen the barrier against tin- gov- 
ernment of a few. Experience will for ever admonish them that, on the 
contrary, after securing a certain number for the purposes of safety t of local 
information, and of diffusing sympathy with the whole society, they will 
counteract their own views by every addition to their representatives." 

It is true that the House of Commons with 670 members has oot been found 
unmanageable. The number present, however, rarely exceeds 460; and there 
is sitting accommodation on the flour for only 360. 

8 Though sometimes the sergeant-at-arms is sent round Washington with a 
carriage to fetch members down from their residences to the Capitol. 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 199 



its being made, whereas in England the House of Lords, whose 
quorum is three, has seldom thirty peers present, and the House 
of Commons often finds a difficulty, especially during the din- 
ner hour, in securing its modest quorum of forty. 1 This require- 
ment of a high quorum, which is prescribed in the Constitution, 
has doubtless helped to secure a good attendance. Other causes 
are the distance from Washington of the residences of most 
members, so that it is not worth while to take the journey 
home for a short sojourn, and the fact that very few attempt 
to carry on any regular business or profession while the session 
lasts. Those who are lawyers, or merchants, or manufacturers, 
leave their work to partners ; but many are politicians and 
nothing else. In Washington, a city without commerce or 
manufactures, political or semi-political intrigue is the only 
gainful occupation possible ; for the Supreme Court practice 
employs only a few leading barristers. The more democratic 
a country is, so much the more regular is the attendance, so 
much closer the attention to the requests of constituents which 
a member is expected to render. 2 Apart from that painful 
duty of finding places for constituents which consumes so 
much of a congressman's time, his duties are not heavier 
than those of a member of the English Parliament who de- 
sires to keep abreast of current questions. The sittings are 
neither so long nor so late as those of the House of Commons ; 
the questions that come up not so multifarious, the blue books 
to be read less numerous, the correspondence (except about 
places) less troublesome. The position of 'senator is more 
onerous than that of a member of the House, not only because 
his whole State, and not merely a district, has a direct claim 
upon him, but also because, as one of a smaller body, he incurs 
a larger individual responsibility, and sits upon two or more 
committees instead of on one only. 

VII. The want of opportunities for distinction in Congress is 
one of the causes which make a political career unattractive to 

1 Oliver Cromwell's House of 360 members, including 30 from Scotland and 
30 from Ireland, had a quorum of 60. 

2 Before the Reform Bill of 1832 there were rarely more than 200 members 
present in the House of Commons, and it usually sat for two or three hours 
only in each day. One of the members for Hampshire, about 1820, sat for 
thirteen years, being in perfect health, and was only thrice in the House. Nor 
was this deemed a very singular case. 



200 THE NATIONAL GOVERNMENT part i 

most Americans. 1 It takes a new member at least a session to 
learn the procedure of the House. Full dress debates are rare, 
newspaper reports of speeches delivered are curt and little read. 
The most serious work is done in committees ; it is not known 
to the world, and much of it results in nothing, because many 
bills which a committee has considered are perhaps never even 
voted on by the House. A place on a good House committee 
is to be obtained by favour, and a high-spirited man may shrink 
from applying for it to the Speaker. Ability, tact, and industry 
make their way in the long run in Congress, as they do every- 
where else. But in Congress there is, for most men, no long 
run. Only very strong local influence, or some remarkable 
party service rendered, will enable a member to keep his seat 
through two or three successive congresses. Nowhere therefore 
does the zeal of a young politician sooner wax cold than in the 
House of Representatives. Unfruitful toil, the toil of turning 
a crank which does nothing but register its own turnings, or of 
writing contributions which an editor steadily rejects, is of all 
things the most disheartening. It is more disheartening than 
the non-requital of merit; for that at least spares the self- 
respect of the sufferer. Now toil for the public is usually 
unfruitful in the House of Representatives, indeed in all 
Houses. But toil for the pecuniary interests of one's constitu- 
ents and friends is fruitful, for it obliges people, it wins the 
reputation of energy and smartness, it has the promise not only 
of a re-nomination, but of that possible seat in the Senate which 
is the highest ambition of the congressman. Power, fame, per- 
haps even riches, sit upon that pinnacle. But the thin spun 
life is usually slit before the fair guerdon has been found. Few 
young men of high gifts and fine tastes look forward to enter- 
ing public life, for the probable disappointments and vexations 
of a life in Congress so far outweigh it^ attract ions that nothing 
but a strong sense of public duty suffices to draw such men 
into it. Law, education, literature, the higher walks of com- 
merce, finance, or railway work, offer a better prospect of use- 
fulness, enjoyment, or distinction. 

Inside Washington, the representative is dwarfed by the 
senator ami the Federal judges. Outside Washington he enjoys 

1 See also Chapter LYlll. post. 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 201 

no great social consideration, 1 especially in the Northern States, 
for in the South his position retains some of its old credit. 
His opinion is not quoted with respect. He seems to move 
about under a prima facie suspicion of being a jobber, and to 
feel that the burden of proof lies on him to show that the cur- 
rent jests on this topic do not apply to him. Eich men there- 
fore do not seek, as in England, to enter the legislature in order 
that they may enter society. They will get no entree which 
they could not have secured otherwise. Nor is there any 
opportunity for the exercise of those social influences which tell 
upon members, and still more upon members' wives and daugh- 
ters, in European legislatures. It may of course be worth while 
to " capture " a particular senator, and for that purpose to begin 
by capturing his wife. But the salon plays no conspicuous part 
in American public life. 

The country does not go to Congress to look for its presiden- 
tial candidates as England looks to Parliament for its prime 
ministers. The opportunities by which a man can win distinc- 
tion there are few. He does not make himself familiar to the 
eye and ear of the people. Congress, in short, is not a focus of 
political life as are the legislatures of France, Italy, and Eng- 
land. Though it has become more powerful against the several 
States than it was formerly, though it has extended its arms in 
every direction, and encroached upon the executive, it has not 
become more interesting to the people, nor strengthened its 
hold on their respect and affection. 

VIII. Neither in the Senate nor in the House are there any 
recognized leaders. There is no ministry, no ex-ministry lead- 
ing an opposition, no chieftains at the head of definite groups 
who follow their lead, as the Irish Nationalist members in the 
British Parliament followed Mr. Parnell, and a large section 
in the French and German chambers followed M. Clemenceau 
and Dr. Windthorst. Hence there exists no regularly working 
agency for securing either that members shall be apprised of 

1 A few years ago an eminent Englishman, visiting one of the colleges for 
women in New England, and wishing to know something of the social stand- 
ing of the students, remarked, " I suppose you have a good many young ladies 
here belonging to the best families, daughters of members of Congress and so 
forth?" The question excited so much amusement that it was repeated to 
me months afterwards not only as an instance of English ignorance but as a 
merry jest. 



202 THE NATIONAL GOVERNMENT part i 

the divisions to be expected, or that they shall vote in those 
divisions in a particular way. 

To any one familiar with the methods of the English Parlia- 
ment this seems incomprehensible. How, he asks, can business 
go on at all, how can each party make itself felt as a party 
with neither leader nor Whips ? 

I have mentioned the Whips. Let me say a word on this 
vital, yet even in England little appreciated, part of the ma- 
chinery of constitutional government. Each party in the 
House of Commons has, besides its leaders, a member of the 
House nominated by the chief leader as his aide-de-camp, and 
sailed the whipper-in, or, for shortness, the whip. The whip's 
duties are (1) to inform every member belonging to the party 
when an important division may be expected, and if he sees 
the member in or about the House, to keep him there until the 
division is called ; (2) to direct the members of his own party 
how to vote ; (3) to obtain pairs for them if they cannot be 
present to vote; (4) to "tell," i.e. count the members in every 
party division; (5) to "keep touch" of opinion within the 
party, and convey to the leader a faithful impression of that 
opinion, from which the latter can judge how far he may count 
on the support of his whole party in any course he proposes to 
take. A member in doubt how he shall vote on a question 
with regard to which he has no opinion of his own, goes to the 
whip for counsel. A member who without grave cause stays 
away unpaired from an important division to which the whip 
lias duly summoned him is guilty of a misdemeanour only less 
flagrant than that of voting against his party. A ministerial 
whip is further bound to " keep a house," i.e. to secure that 
when government business is being considered there shall al- 
ways be a quorum of members present, and of coarse also to 
keep a majority, i.e. to have within reach a number of support- 
ers sufficient to give the ministry a majority on any minis- 
terial division. 1 Without the constant presence and activity 

1 That which was at one time the chief function of the ministerial whip. viz. 
to pay members for the votes they gave in support oi the government, has 
been extinct for about a century. He is* still, however, the recognized organ 
for handling questions o( political patronage, ami is therefore called the 
Patronage Secretary to the Treasury. People who want places for their 

friends, or titles for themselves, still a<l<Ire>s their requests to him, which he 
communicates to the prime minister with his opinion as to whether the appli- 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 203 

of the ministerial whip the wheels of government could not go 
on for a day, because the ministry would be exposed to the 
risk of casual defeats which would destroy their credit and 
might involve their resignation. Similarly the Opposition, and 
any third or fourth party, find it necessary to have their whip 
or whips, because it is only thus that they can act as a party, 
guide their supporters, and bring their full strength to bear on 
a division. Hence when a new party is formed, its first act, 
that by which it realizes and proclaims its existence, is to name 
whips, to whom its adherents may go for counsel, and who 
may in turn receive their suggestions as to the proper strategy 
for the party to adopt. 1 So essential are these officers to the 
discipline of English parliamentary armies that an English 
politician's first question when he sees Congress is, "Where 
are the whips ? " his next, " How in the world do you get on 
without them ? " 

The answer to this question is threefold. Whips are not so 
necessary at Washington as at Westminster. A sort of sub- 
stitute for them has been devised. Congress does to some ex- 
tent suffer from the inadequacy of the substituted device. 

A division in Congress has not the importance it has in the 
House of Commons. There it may throw out the ministry. 
In Congress it never does more than affirm or negative some 
particular bill or resolution. Even a division in the Senate 
which involves the rejection of a treaty or of an appointment 
to some great office, does not disturb the tenure of the execu- 
tive. Hence it is not essential to the majority that its full 
strength should be always at hand, nor has a minority party 
any great prize set before it as the result of a successful vote. 

Questions, however, arise in which some large party interest 
is involved. There may be a bill by which the party means to 
carry out its main views of policy or perhaps to curry favour 
with the people, or a resolution whereby it hopes to damage a 

cant's party services justify the request. Nowadays this patronage has no 
great political importance. 

1 Even parties formed with a view to particular, and probably transitory 
issues, such as that of the English Anti-Home-Rule Liberals in the House of 
Commons, appoint one or more of their members as whips, because they could 
not otherwise act with that effect which only habitual concert gives. Each 
party has its whips in the House of Lords also, but as divisions there have less 
political significance their functions are less important. 



204 THE NATIONAL GOVERNMENT part i 

hostile executive. In such cases it is important to bring up 
every vote. Accordingly at the beginning of every Congress a 
caucus committee is elected by the majority, and it becomes the 
duty of the chairman and secretary of this committee (to whom, 
in the case of a party bill supported by the majority, there is 
added the chairman of the committee to which that bill has 
been referred, necessarily a member of the majority) to act as 
whips, i.e. to give notice of important divisions by sending out a 
"call" to members of the party, and to take all requisite steps 
to have a quorum and a majority present to push through the 
bill or resolution to which the party stands committed. Muta- 
tis mutandis (for of course it is seldom an object with the 
minority to secure a quorum), the minority take the same course 
to bring up their men on important divisions. In cases of 
gravity or doubt, where it is thought prudent to consult or to 
restimulate the party, the caucus committee convokes a caucus. 
i.e. a meeting of the whole party, at which the attitude to be 
assumed by the party is debated with closed doors, and a vote 
taken as to the course to be adopted. 1 By this vote every 
member of the party is deemed bound, just as he would be in 
England by the request of the leader conveyed through the 
whip. Disobedience cannot be punished in Congress itself, 
except of course by social penalties ; but it endangers the seat 
of the too independent member, for the party managers at 
Washington will communicate with the party managers in his 
district, and the latter will probably refuse to re-nominate him 
at the next election. The most important caucus of a Con- 
gress is that held at the opening to select the party candidate 
for the speakership, selection by the majority being of course 
equivalent to election. As the views and tendencies of the 
Speaker determine the composition of the committees, and 
thereby the course of legislation, his selection is a matter of 
supreme importance, and is preceded by weeks of intrigue and 
canvassing. 

1 An experienced senator told me that the Senate caucus of his party used 
to meet on an average twice a month, the House caucus less frequently. A 
leading member of the House said that a " call " would he sent out. on an aver- 
age, for about six measures in a session, i.e. from ten to twenty times alto- 
gether, according to the resistance offered to the measures oi the majority. 
Sometimes a " call " of the majority is signed by the Speaker, General meet- 
ings of a party in Parliament are much less common in England. 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 205 

The process of " going into canons " is the regular American 
substitute for recognized leadership, and has the advantage of 
seeming more consistent with democratic equality, because 
every member of the party has in theory equal weight in the 
party meeting. It is nsed whenever a line of policy has to be 
settled, or the whole party to be rallied for a particular party 
division. But of course it cannot be employed every day or 
for every bill. Hence when no party meeting has issued its 
orders, a member is comparatively free to vote as he pleases, 
or rather as he thinks his constituents please. If he knows 
nothing of the matter, he may take a friend's advice, or vote 
as he hears some prominent man on his own side vote. Any- 
how, his vote is doubtful, unpredictable; and consequently 
divisions on minor questions are uncertain. This is a further 
reason, added to the power of the standing committees, why 
there is a want of consistent policy in the action of Congress. 
As its leading men have comparatively little authority, and 
there are no means whereby a leader could keep his party to- 
gether on ordinary questions, so no definite ideas run through 
its conduct and express themselves in its votes. It moves in 
zig-zags. 

The freedom thus enjoyed by members on minor questions 
has the interesting result of preventing dissensions and splits 
in the parties. There are substances which cohere best when 
their contact is loose. Fresh fallen snoAv keeps a smooth sur- 
face even on a steep slope, but when by melting and regelation 
it has become ice, cracks and rifts begin to appear. A loose 
hung carriage will hold together over a road whose roughness 
would strain and break a more solid one. Hence serious differ- 
ences of opinion may exist in a congressional party without 
breaking its party unity, for nothing more is needed than that 
a solid front should be presented on the occasions, few in each 
session, when a momentous division arrives. The appearance 
of agreement is all the more readily preserved because there is 
little serious debating, so that the advocates of one view seldom 
provoke the other section of their party to rise and contradict 
them ; while a member who dissents from the bulk of his party 
on an important issue is slow to vote against it, because he has 
little chance of defining and defending his position by an ex- 
planatory speech. 



206 THE NATIONAL GOVERNMENT part i 

The congressional caucus has in troublous times to be sup- 
plemented by something like obedience to regular leaders. Mr. 
Thaddeus Stevens, for instance, led with recognized authority 
the majority of the House in its struggle with President An- 
drew Johnson. The Senate is rather more jealous of the equal- 
ity of all its members. No senator can be said to have any 
authority beyond that of exceptional talent and experience; 
and of course a senatorial caucus, since it rarely consists of 
more than fifty persons, is a better working body than a House 
caucus, which may exceed two hundred. 1 

The European reader may be perplexed by the apparent 
contradictions in what has been said regarding the party 
organization of Congress. " Is the American House after 
all," he will ask, " more or less a party body than the British 
House of Commons ? Is the spirit of party more or less strong 
in Congress than in the American people generally ? " 

For the purpose of serious party issues the House of Eepre- 
sentatives is fully as much a party body as the House of 
Commons. A member voting against his party on such an 
issue is more certain to forfeit his party reputation and his 
seat than is an English member. JBut for the purpose of 
ordinary questions, of issues not involving party fortunes, a 
representative is less bound by party ties than an English 
member, because he has neither leaders to guide him by their 
speeches nor whips by their private instructions. The appar- 
ent gain is that a wider field is left for independent judgment 
on non-partisan questions. The real loss is that legislation 
becomes weak and inconsistent. This conclusion is not encour- 
aging to those who expect us to get rid of party in our legis- 
latures. A deliberative assembly is, after all, only a crowd of 
men; and the more intelligent a crowd is, so much the more 
numerous are its volitions ; so much greater the difficulty of 
agreement. Like other crowds, a legislature must be led and 
ruled. Its merit lies not in the independence of its members, 
but in the reflex action of its opinion upon the leaders, in its 

1 Ai one time the congressional caucus played in American history a gve:\t 
part which it has now renounced. From 1800 till 1824 party meetings of sena- 
tors and representatives were held which nominated the party candidates for 

the presidency, who were then accepted by each party as iis regular candi- 
dates. In 1828 the State legislatures made these nominations, and in 1832 the 
present system of national conventions (see post, in Vol. 11.) was introduced. 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 207 

willingness to defer to them in minor matters, reserving dis- 
obedience for the issnes in which some great principle over- 
rides both the obligation of deference to established authority 
and the respect dne to special knowledge. 

The above remarks answer the second question also. The 
spirit of party may seem to be weaker in Congress than in the 
people at large. But this is only because the questions which 
the people decide at the polls are always questions of choice 
between candidates for office. These are definite questions, 
questions eminently of a party character, because candidates 
represent in the America of to-day not principles but parties. 
Whenever a vote upon persons occurs in Congress, Congress 
gives a strict party vote. Were the people to vote at the polls 
on matters not explicitly comprised within a party platform, 
there would be the same uncertainty as Congress displays. 
The habit of joint action which makes the life of a party is 
equally intense in every part of the American system. But 
in England the existence of a Ministry and Opposition in 
Parliament sweeps within the circle of party action many 
topics which in America are left outside, and therefore Con- 
gress seems, but is not, less permeated than Parliament by 
party spirit. 



CHAPTER XX 

THE RELATIONS OF CONGRESS TO THE PRESIDENT 1 

So far as they are legislative bodies, the House and the 
Senate have similar powers and stand in the same relation to 
the executive. 2 We may therefore discuss them together, or 
rather the reader may assume that whatever is said of the 
House as a legislature applies to the Senate. 3 

Although the Constitution forbids any Federal official to be 
a member of either the House or the Senate, there is nothing 
in it to prevent officials from speaking there ; as indeed there 
is nothing to prevent either House from assigning places and 
the right to speak to any one whom it chooses. In the early 
days Washington came down and delivered his opening speech. 
Occasionally he remained in the Senate during a debate, and 
even expressed his opinion there. When Hamilton, the first 
secretary of the treasury, prepared his famous report on the 
national finances, he asked the House whether they would hear 
him speak it, or would receive it in writing. They chose the 
latter course, and the precedent then set has been followed by 
subsequent ministers, 4 while that set in 1801 by President 

1 The relations of the various organs of government to one another in the 
United States are so interesting and so unlike those which exist in most 
European countries, that I have found it necessary to describe them with 
some minuteness, and from several points of view. In this chapter an account 
is given of the actual working relations of the President and Congress: in the 
next chapter the general theory of the respective functions of the executive 
and legislative departments is examined, and the American view of the nature 
of these functions explained; while in Chapter XXV. the American system as 
a Whole is compared with the so-called "cabinet system" of Britain and her 
colonies. 

2 The House lias the exclusive initiative in revenue bills; but this privilege 
does not affect what follows. 

8 The executive functions of the Senate have been discussed in Chapter XI. 
* A committee of the Senate reported in favour of giving the r|ght of speech 
to ministers (see note to Chapter IX. ante) j and this was provided in the 
90S 



chap, xx CONGRESS AND THE PRESIDENT 209 

Jefferson when he transmitted his message in writing instead 
of delivering a speech, has been similarly respected by all his 
successors. Thus neither House now hears a member of the 
executive ; and when a minister appears before a committee, he 
appears only as a witness to answer questions, not to state and 
argue his own case. There is therefore little direct intercourse 
between Congress and the administration, and no sense of 
interdependence and community of action such as exists in 
other parliamentary countries. 1 Be it remembered also that & 
minister may never have sat in Congress, and may therefore 
be ignorant of its temper and habits. Six members of Mr. 
Cleveland's cabinet, in 1888, had never had a seat in either 
House. The President himself, although he has been voted 
into office by his party, is not necessarily its leader, nor even 
one among its most prominent leaders. Hence he does not 
sway the councils and guide the policy of those members of 
Congress who belong to his own side. No duty lies on Con- 
gress to take up a subject to which he has called attention as 
needing legislation ; and the suggestions which he makes, year 
after year, are in fact frequently neglected, even when his party 
has a majority in both Houses, or when the subject lies outside 
party lines. 

The President and his cabinet have no recognized spokesman 
in either House. A particular senator or representative may 
be in confidential communication with them, and be the instru- 
ment through whom they seek to act ; but he would probably 
disavow rather than claim the position of an exponent of min- 
isterial wishes. The President can of course influence mem- 
Constitution of the Southern Confederacy (see note to Chapter XXVI. at the 
end of this volume). The President may of course come into the Senate, 
though he does not deliver speeches to it. He does not go into the House of 
Representatives. Nor has any English king entered the House of Commons, 
except Charles I. in 1642, on the occasion of his attempt to seize the five mem- 
bers, when, says the Journal, " His Majesty came into the House and took 
Mr. Speaker's chair: 'Gentlemen, I am sorry to have this occasion to come 
unto you.' " The results did not encourage his successors to repeat the visit. 
But Charles II. was sometimes present during debates in the House of Lords, 
and even exhorted the Lords to be more orderly ; Anne sometimes appeared ; 
and there would not, it is conceived, be anything to prevent the Sovereign 
from being present now. 

1 The House some years ago passed a bill for transferring Indian affairs 
from the Secretary of the Interior to the Secretary of War without consulting 
either official. 

VOL. I p 



210 THE NATIONAL GOVERNMENT part i 

bers of Congress through patronage. He may give places to 
thern or their friends ; he may approve or veto bills in which 
they are interested j his ministers may allot lucrative contracts 
to their nominees. This power is considerable, but covert, for 
the knowledge that it was being used might damage the mem- 
ber in public estimation and expose the executive to imputa- 
tions. The consequence of cutting off open relations has been 
to encourage secret influence, which may no doubt be used for 
legitimate purposes, but which, being exerted in darkness, is 
seldom above suspicion. When the President or a minister is 
attacked in Congress, it is not the duty of any one there to 
justify his conduct. The accused official may send a written 
defence or may induce a member to state his case ; but this 
method lacks the advantages of the European parliamentary 
system, under which the person assailed repels in debate the 
various charges, showing himself not afraid to answer fresh 
questions and grapple with new points. Thus by its exclusion 
from Congress the executive is deprived of the power of leading 
and guiding the legislature and of justifying in debate its 
administrative acts. 

Next as to the power of Congress over the executive. Either 
House of Congress, or both Houses jointly, can pass resolu- 
tions calling on the President or his ministers to take certain 
steps, or disapproving steps they have already taken. The 
President need not obey such resolutions, need not even notice 
them. They do not shorten his term or limit his discretion. 1 
Moreover, if the resolution be one censuring the act of a min- 
ister, the President does not escape responsibility by throwing 
over the minister, because the law makes him, and not his ser- 
vant or adviser, responsible. 

Either House of Congress can direct a committee to summon 
and examine a minister, who, though he might legally refuse 
to attend, never does refuse. The committee, when it has got 
him, can do nothing more than question him. He may evade 
their questions, may put them off the scent by dexterous con- 

1 In England a resolution of the House of Commons alone is treated as 
imperative in matters lying within the discretion of the executive, but then 
the House of Commons 1ms the power of dismissing the Government if its 
wishes are disregarded. There have even been instances of late years in which 
the executive lias ceased to put in force the provisions of an unrepealed statute, 
because the House of Commons has expressed its disapproval of that statute. 



chap, xx CONGRESS AND THE PRESIDENT 211 

cealments. He may with, impunity tell them that he means to 
take his own course. To his own master, the President, he 
standeth or falleth. 

Congress may refuse to the President the legislation he 
requests, and thus, by mortifying and embarrassing him, may 
seek to compel his compliance with its wishes. It is only a 
timid President, or a President greatly bent on accomplishing 
some end for which legislation is needed, who will be moved 
by such tactics. 

Congress can pass bills requiring the President or any min- 
ister to do or abstain from doing certain acts of a kind hitherto 
left to his free will and judgment, may, in fact, endeavour to 
tie down the officials by prescribing certain conduct for them 
in great detail. The President will presumably veto such 
bills, as contrary to sound administrative policy. If, however, 
he signs them, or if Congress passes them over his veto, the 
further question may arise whether they are within the con- 
stitutional powers of Congress, or are invalid as unduly trench- 
ing on the discretion which the Constitution leaves to the 
executive chief magistrate. If he (or a minister), alleging 
them to be unconstitutional, disobeys them, the only means of 
deciding whether he is right is by getting the point before the 
Supreme Court as an issue of law in some legal proceeding. 
This cannot always be done. If it is done, and the court 
decide against the President, then if he still refuses to obey, 
nothing remains but to impeach him. 

Impeachment, of which an account has already been given, 
is the heaviest piece of artillery in the congressional arsenal, 
but because it is so heavy it is unfit for ordinary use. It is 
like a hundred-ton gun which needs complex machinery to 
bring it into position, an enormous charge of powder to fire it, 
and a large mark to aim at. Or to vary the simile, impeachment 
is what physicians call a heroic medicine, an extreme remedy, 
proper to be applied against an official guilty of political crimes, 
but ill adapted for the punishment of small transgressions. 
Although the one President (Andrew Johnson) against whom 
it has been used had for two years constantly, and with great 
intemperance of language, so defied and resisted Congress that 
the whole machinery of government had been severely strained, 
yet the Senate did not convict him, because no single offence 



212 THE NATIONAL GOVERNMENT paet i 

had been clearly made out. Thus impeachment does not tend 
to secure, and indeed was never meant to secure, the co-opera- 
tion of the executive with Congress. 

It accordingly appears that Congress cannot compel the dis- 
missal of any official. It may investigate his conduct by a 
committee and so try to drive him to resign. It may request 
the President to dismiss him, but if his master stands by him 
and he sticks to his place, nothing more can be done. He may 
of course be impeached, but one does not impeach for mere 
incompetence or laxity, as one does not use steam hammers to 
crack nuts. Thus we arrive at the result that while Congress 
may examine the servants of the public to any extent, may 
censure them, may lay down rules for their guidance, it can- 
not get rid of them. It is as if the directors of a company 
were forced to go on employing a manager whom they had 
ceased to trust, because it was not they but the shareholders 
who had appointed him. 

There remains the power which in free countries has been 
long regarded as the citadel of parliamentary supremacy, the 
power of the purse. The Constitution keeps the President 
far from this citadel, granting to Congress the sole right of 
raising money and appropriating it to the service of the state. 
Its management of national finance is significantly illustrative 
of the plan which separates the legislative from the executive. 
In this supremely important matter, the administration, instead 
of proposing and supervising, instead of securing that each 
department gets the money that it needs, that no money goes 
where it is not needed, that revenue is procured in the least 
troublesome and expensive way, that an exact yearly balance 
is struck, that the policy of expenditure is self-consistent and 
reasonably permanent from year to year, is by its exclusion 
from Congress deprived of influence on the one hand, of 
responsibility on the other. The office of Finance Minister 
is put into commission, and divided between the chairmen 
of several unconnected committees of both Houses. A mass 
of business which specially needs the knowledge, skill, ami 
economical conscience of a responsible ministry, is left to 
committees which are powerful but not responsible, and to 
Houses whose nominal responsibility is in practice sadly weak- 
ened by their want of appropriate methods and organization. 



chap, xx CONGRESS AND THE PRESIDENT 213 

How far, then, does the power of the purse enable Congress 
to control the President ? Much less than in European coun- 
tries. Congress may check any particular scheme which the 
President favours by refusing supplies for it. If he were to 
engage in military operations — he cannot under the Constitu- 
tion " declare war " for that belongs to Congress — the House 
might paralyze him by declining to vote the requisite army 
appropriations. If he were to repeat the splendid audacity of 
Jefferson by purchasing a new territory, they could withhold 
the purchase money. But if, keeping within the limits of his 
constitutional functions, he takes a different course from that 
they recommend, if for instance he should refuse, at their 
repeated requests, to demand the liberation of American citi- 
zens pining in foreign dungeons, or to suppress disorders in a 
State whose government had requested Federal intervention, 
they would have to look on. To withhold the ordinary sup- 
plies, and thereby stop the machine of government, would 
injure the country and themselves far more than the Presi- 
dent. They would, to use a common expression, be cutting 
off their nose to spite their face. They could not lawfully 
refuse to vote his salary, for that is guaranteed to him by the 
Constitution. They could not, except by a successful impeach- 
ment, turn him out of the White House or deprive him of his 
title to the obedience of all Federal officials. 

Accordingly, when Congress has endeavoured to coerce the 
President by the use of its money powers, the case being one 
in which it could not attack him by ordinary legislation 
(either because such legislation would be unconstitutional, or 
for want of a two-thirds majority), it has proceeded not by 
refusing appropriations altogether, as the British House of 
Commons would do in like circumstances, but by attaching 
what is called a "rider" to an appropriation bill. Many 
years ago the House formed, and soon began to indulge freely 
in, the habit of inserting in bills appropriating money to 
the purposes of the public service, provisions relating to 
quite different matters, which there was not time to push 
through in the ordinary way. In 1867 Congress used this 
device against President Johnson, with whom it was then at 
open war, by attaching to an army appropriation bill a clause 
which virtually deprived the President of the command of the 



214 THE NATIONAL GOVERNMENT part i 

army, entrusting its management to the general highest in 
command (General Grant). The President yielded, knowing 
that if he refused the bill would be carried over his veto by a 
two-thirds vote j and a usage already mischievous was con- 
firmed. In 1879, the majority in Congress attempted to over- 
come, by the same weapon, the resistance of President Hayes 
to certain measures affecting the South which they desired to 
pass. They tacked these measures to three appropriation bills, 
army, legislative, and judiciary. The minority in both houses 
fought hard against the riders, but were beaten. The Presi- 
dent vetoed all three bills, and Congress was obliged to pass 
them without the riders. Next session the struggle recom- 
menced in the same form, and the President, by rejecting the 
money bills, again compelled Congress to drop the tacked pro- 
visions. This victory, which was of course due to the fact 
that the dominant party in Congress could not command a two- 
thirds majority, was deemed to have settled the question as 
between the executive and the legislature, and may have perma- 
nently discouraged the latter from recurring to the same tactics. 
President Hayes in his veto messages argued strongly 
against the whole practice of tacking other matters to money 
bills ; and a rule of the House now declares that an appropria- 
tion bill shall not carry any new legislation. It has certainly 
caused great abuses, and is forbidden by the constitutions of 
many States. Eecently the President has urged upon Congress 
the desirability of so amending the Federal Constitution as to 
enable him, as a State governor is by some recent State consti- 
tutions allowed to do, to veto single items in an appropriation 
bill without rejecting the whole bill. Such an amendment 
is desired by enlightened men, because it would enable the 
executive to do its duty by the country in defeating the petty 
jobs now smuggled into these bills, without losing the sup- 
plies necessary for the public service which the bills provide. 
Small as the change seems, its adoption would cure one of 
the defects due to the absence of ministers from Cong 
and save the nation millions of dollars a year, by diminish- 
ing wasteful expenditure on local purposes. Put the pn 
of amending the Constitution is so troublesome that even a 
change which involves no party issues may remain unadopted 
long after the best, opinion has become unanimous in its favour. 



CHAPTER XXI 

THE LEGISLATURE AND THE EXECUTIVE 

The fundamental characteristic of the American National 
Government is its separation of the legislative, executive, and 
judicial departments. This separation is the merit which the 
Philadelphia Convention chiefly sought to attain, and which 
the Americans have been wont to regard as most completely 
secured by their Constitution. In Europe, as well as in 
America, men are accustomed to talk of legislation and admin- 
istration as distinct. But a consideration of their nature will 
show that it is not easy to separate these two departments in 
theory by analysis, and still less easy to keep them apart in 
practice. We may begin by examining their relations in the 
internal affairs of a nation, reserving foreign policy for a later 
part of the discussion. 

People commonly think of the Legislature as the body which 
lays down general rules of law, which prescribes, for instance, 
that at a man's death his children shall succeed equally to his 
property, or that a convicted thief shall be punished with im- 
prisonment, or that a manufacturer may register his trade 
mark. They think of the Executive as consisting of the per- 
sons who do certain acts under those rules, who lock up con- 
victs, register trade marks, carry letters, raise and pay a police 
and an army. In finance the Legislature imposes a tax, the 
Executive gathers it, and places it in the treasury or in a bank, 
subject to legislative orders ; the Legislature votes money by 
a statute, appropriating it to a specific purpose ; the Execu- 
tive draws it from the treasury or bank, and applies it to that 
purpose, perhaps in paying the army, perhaps in building a 
bridge. 

The executive is, in civilized countries, itself the creature of 
the law, deriving therefrom its existence as well as its author- 



216 THE NATIONAL GOVERXMEM part i 

ity. Sometimes, as in France, it is so palpably and formally. 
The President of the Eepublic has been called into existence 
by the Constitution. Sometimes, as in England, it is so sub- 
stantially, though not formally. The English Crown dates 
from a remote antiquity, when custom and belief had scarcely 
crystallized into law ; and though Parliament has repeatedly 
determined its devolution upon particular persons or families 
— it is now held under the Act of Settlement — no statute has 
ever affected to confer upon it its rights to the obedience of 
the people. But practically it holds its powers at the pleas- 
ure of Parliament, which has in some cases expressly limited 
them, and in others given them a tacit recognition. We 
may accordingly say of England and of all constitutional 
monarchies as well as of republics that the executive in all its 
acts must obey the law, that is to say, if the law prescribes a 
particular course of action, the executive must take that 
course ; if the law forbids a particular course, the executive 
must avoid it. 

It is therefore clear that the extent of the power of the 
executive magistrate depends upon the particularity with 
Avhich the law is drawn, that is, upon the amount of discretion 
which the law leaves to him. If the law is general in its 
terms, the executive has a wide discretion. If, for instance, 
the law prescribes simply that a duty of ten per cent ad valorem 
be levied on all manufactured goods imported, it rests with 
the executive to determine by whom and where that duty 
shall be collected, and on what principles it shall be calcu- 
lated. If the law merely creates a post-office, the executive 
may fix the rate of payment for letters and parcels, and the 
conditions on which they will be received and delivered. In 
these cases the executive has a large field within which to 
exert its free will and choice of means. Power means nothing 
more than the extent to which a man can make his individual 
will prevail against the wills of other men. so as to control 
them. Hence, when the law gives to a magistrate a wide dis- 
cretion, lie is powerful, because the law clothes his will with 
all the power of the state. Oil the other hand, if tin 1 law goes 
into minute details, directing this to be done and that not to 
be done, it narrows the discretion of the executive magistrate. 
His personal will and choice are gone. He can no longer be 



chap, xxi LEGISLATURE AND EXECUTIVE 217 

thought of as a co-ordinate power in the state. He becomes 
a mere servant, a hand to carry out the bidding of the legis- 
lative brain, or, we may even say, a tool in the legislative 
hand. 

As the legislature has been the body through which the peo- 
ple have chiefly asserted their authority, we find that law- 
making assemblies, whether primary or representative, have 
always sought to extend their province and to subject the 
executive to themselves. They have done this in several 
ways. In the democracies of ancient Greece the assembly of 
citizens not only passed statutes of general application, but 
made peace or declared war; ordered an expedition to start 
for Sphacteria, and put Cleon at the head of it ; commanded 
the execution of prisoners or reprieved them ; conducted, in 
fact, most of the public business of the city by a series of 
direct decrees, all of which were laws, i.e. declarations of its 
sovereign will. It was virtually the government. The chief 
executive officers of Athens, called the generals, had little 
authority except over the military operations in the field. 
Even the Koman Constitution, a far more highly developed 
and scientific, though also a complicated and cumbrous system, 
while it wisely left great discretion to the chief magistrates 
(requiring them, however, to consult the Senate), yet per- 
mitted the passing pro re nata of important laws, which were 
really executive acts, such as the law by which Pompey 
received an extraordinary command against Mithradates. The 
Romans did not draw, any more than the Greek republics, a 
distinction between general and special legislation. 1 

This method, in which the people directly govern as a legis- 
lature, reducing the executive magistrates to passive instru- 
ments, is inapplicable where the country is large, because the 
mass of citizens cannot come together as an assembly. It is 
highly inconvenient where the legislature, though a represen- 
tative body, is very numerous. England, accordingly, and the 

1 Cf. Chapter XXXI. and notes thereto. The distinction is apt to be for- 
gotten under a despotic monarch, who is at once the executive and the legisla- 
tive authority. Nevertheless, even under an autocrat there are some general 
rules which his individual volition dares not change, because the universal 
opinion of the people approves them. The book of Daniel even represents 
Darius as unable to revoke a general law be has once sanctioned, or to except 
a particular person from its operation. 



218 THE NATIONAL GOVERNMENT 



nations which have imitated England, 1 have taken a different 
method. The people (that is, the qualified voters) have allowed 
an executive to subsist with apparently wide powers, but they 
virtually choose this executive, and keep it in so close and con- 
stant a dependence upon their pleasure, that it dare not act 
against what it believes their will to be. The struggle for 
popular liberties in England took at first the form of a struggle 
for the supremacy of law ; that is to say, it was a struggle to 
restrain the prerogative of the king by compelling his ministers 
to respect the ancient customs of the land and the statutes 
passed in Parliament. As the customs were always maintained, 
and the range of the statutes constantly widened, the executive 
was by degrees hemmed in within narrow limits, its discretion- 
ary power restricted, and that characteristic principle of the 
Constitution, which has been well called "The Reign of Law.'' 
was established. It was settled that the law, i.e. the ancient 
customs and the statutes, should always prevail against the 
discretion of the Crown and its ministers, and that acts done 
by the servants of the Crown should be justiciable, exactly like 
the acts of private persons. This once achieved, the executive 
fairly bitted and bridled, and the ministry made to hold office 
at the pleasure of the House of Commons, Parliament had no 
longer its former motive for seeking to restrict the discretion 
of the ministers of the Crown by minutely particular legisla- 
tion, for ministers had become so accustomed to subjection that 
their discretion might be trusted. Parliament has, in fact, of 
late years begun to sail on the other tack, and allows ministers 
to do many things by regulations, schemes, orders in council. 
and so forth, which would previously have been done by 
statute, generally, however, reserving to itself a right of dis- 
approval. 

It may be asked how it comes, if this be so, that people 
nevertheless talk of the executive in England as being a sepa- 
rate and considerable authority. The answer is twofold. The 
English Crown lias never been, SO to speak, thrown into the 

1 But during and Immediately after the great Civil War the Long Parlia- 
ment acted as both a legislative and an executive authority, as did the Con- 
vention through pari of the French Revolution. And Parliament oi course 

still retains its powei of giving what are practically executive orders. <\</. it 
can pass a statute directing a particular island to be seized or another to be 
evacuated, as Heligoland lately was. 



chap, xxi LEGISLATURE AND EXECUTIVE 219 

melting-pot and recast, but has continued, in external form and 
seeming, an independent and highly dignified part of the con- 
stitutional system. 1 Parliament has never asserted a direct 
control over certain parts of the royal prerogative, such as the 
bestowal of honours, the creation of peerages, the making of 
appointments to office. No one at this moment can say exactly 
what the royal prerogative does or does not include. And 
secondly, the actual executive, i.e. the ministry of the day, 
retains some advantages which are practically, though not 
legally, immense. It has an initiative in all legislation, a sole 
initiative in financial legislation. It is a small and well organ- 
ized body placed in the midst of a much larger, and less or- 
ganized body {i.e. the two Houses), on which therefore it can 
powerfully act. All patronage, ecclesiastical as well as civil, 
lies in its gift, and though it must not use this function so as 
to disgust the Commons, it has great latitude in the disposal 
of favours. While Parliament is sitting it disposes of a large 
part, sometimes of the whole, of the time of the House of Com- 
mons, and can therefore advance the measures it prefers, while 
retarding or evading motions it dislikes. During nearly half 
the year Parliament is not sitting, and the necessities of a great 
State placed in a restless world oblige a ministry to take mo- 
mentous resolutions upon its own responsibility. Finally, 
it includes a few men who have obtained a hold on the imagi- 
nation and confidence of the people, which emboldens them to 

1 An interesting illustration of the relations of the English executive to the 
legislature in the fourteenth and fifteenth centuries, when Parliament was 
little more than a pure legislature, is afforded by the present constitution of 
the tiny kingdom of the Isle of Man, the last survivor of those numerous king- 
doms among which the British Isles were once divided. Its government is 
carried on by a Governor (appointed by the English Crown) , a council of eight 
(composed partly of persons nominated by the Crown and partly of ex-officio 
members holding posts to which they have been appointed by the Crown) , and 
an elected representative assembly of twenty-four. The assembly is purely 
legislative, and cannot check the Governor otherwise than by withholding the 
legislation he wishes for and such taxes as are annually voted. For the pur- 
poses of finance bills the assembly (House of Keys) and the council sit together 
but vote separately. The Governor presides, as the English king did in his 
Great Council. The Governor can stop any legislation he disapproves, and 
can retain his ministers against the will of the assembly. He is a true execu- 
tive magistrate, commanding, moreover, like the earlier English kings, a 
considerable revenue which does not depend on the annual votes of the legis- 
lature. Here therefore is an Old-World instance of the American system as 
contradistinguished from the cabinet system of England and her colonies. 



220 THE NATIONAL GOVERNMENT part i 

resist or even to lecture Parliament, and often to prevail, not 
only against its first impulses, but possibly against its deliber- 
ate wishes. And an English ministry is strong not only because 
it so frankly acknowledges its dependence on the Commons as 
not to rouse the antagonism of that body, to which, be it remem- 
bered, most ministers belong, but also because it has another 
power outside to Avhich it can, in extreme cases, appeal. It 
may dissolve Parliament, and ask the people to judge between 
its views and those of the majority of the House of Commons. 
Sometimes such an appeal succeeds. The power of making it 
is at all times a resource. 

This delicate equipoise of the ministry, the House of Com- 
mons, and the nation acting at a general election, is the secret 
of the smooth working of the British Constitution. It reap- 
pears in two remarkable Constitutions, which deserve fuller 
study than they have yet received from American or English 
publicists, those of Prussia and the new German Empire. 
There, however, the ministry is relatively stronger than in 
England, because the Crown retains not only a wider range of 
legal authority, but a greater moral influence over the people, 
who have had less practice than the English in working free 
institutions, and who never forget that they are soldiers, and 
the King-Emperor head of the army. A Prussian minister is 
so likely to have the nation on his side when he makes an 
appeal to it in the name of the King, and feels so confident 
that even if he' defies the Chambers without dissolving, the 
nation will not be greatly stirred, that he sometimes refuses to 
obey the legislature. This is one of those exceptions which 
illustrate the rule. The legislature is prevented from gaining 
ground on the executive, not so much by the Constitution as 
by the occasional refusal of the executive to obey the Consti- 
tution, a refusal made in reliance on the ascendency of the 
Crown. 

So far we have been considering domestic policy. The case 
of foreign affairs differs chiefly in this, that they cannot be 
provided for beforehand by laws general in application, but 
minutely particular in wording. A governing assembly may 
take foreign affairs into its own hand. In the republics of 
antiquity the Assembly did so, and was its own foreign office. 
The Athenian Assembly received ambassadors, declared war. 



chap, xxi LEGISLATURE AND EXECUTIVE 221 

concluded treaties. It got on well enough while it had to deal 
with other republics like itself, but suffered when the contest 
came to be with an astute diplomatist like Philip of Macedon. 
The Roman Senate conducted the foreign policy of Rome, 
often with the skill to be expected from men of immense 
experience and ability, yet sometimes with a vacillation which 
a monarch would have been less likely to show. But the 
foreign relations of modern states are so numerous and com- 
plex, and so much entangled with commercial questions, that 
it has become necessary to create a staff of trained officials to 
deal with them. No large popular assembly could have either 
the time or the knowledge requisite for managing the ordinary 
business, much less could it conduct a delicate negotiation 
whose success would depend on promptitude and secrecy. 
Hence even democratic countries like France and England are 
forced to leave foreign affairs to a far greater degree than 
home affairs to the discretion of the ministry of the day. 
France reserves to the Chambers the power of declaring war 
or concluding a treaty. England has so far adhered to the old 
traditions as to leave both to the Crown, though the first, and 
in most cases the second, must be exerted with the virtual 
approval of Parliament. The executive is as distinctly respon- 
sible to the legislature, as clearly bound to obey the directions 
of the legislature, as in matters of domestic concern. But the 
impossibility which the legislature in countries like France 
and England finds in either assuming executive functions in 
international intercourse, or laying down any rules by law for 
the guidance of the executive, necessarily gives the executive 
a wide discretion and a correspondingly large measure of in- 
fluence and authority. The only way of restricting this au- 
thority would be to create a small foreign affairs committee of 
the legislature and to empower it to sit when the latter was 
not sitting. And this extreme course neither France nor Eng- 
land has yet taken, because the dependence of the ministry on 
the majority of the legislature has hitherto seemed to secure 
the conformity of the Foreign Office to the ideas and senti- 
ments of that majority. 

Before applying these observations to the United States, let 
us summarize the conclusions we have reached. 

We have found that wherever the will of the people prevails, 



222 THE NATIONAL GOVERNMENT fajm i 

the legislature, since it either is or represents the people, can 
make itself omnipotent, unless checked by the action of the 
people themselves. It can do this in tAvo ways. It may, like 
the republics of antiquity, issue decrees for particular cases as 
they arise, giving constant commands to all its agents, who 
thus become mere servants with no discretion left them. Or 
it may frame its laws with such particularity as to provide 
by anticipation for the greatest possible number of imaginable 
cases, in this way also so binding down its officials as to leave 
them no volition, no real authority. 

We have also observed that every legislature tends so to 
enlarge its powers as to encroach on the executive ; and that 
it has great advantages for so doing, because a succeeding leg- 
islature rarely consents to strike off any fetter its predecessor 
has imposed. 

Thus the legitimate issue of the process would be the extinc- 
tion or absorption of the executive as a power in the state. 
It would become a mere set of employes, obeying the legislat- 
ure as the clerks in a bank obey the directors. If this does 
not happen, the cause is generally to be sought in some one or 
more of the following circumstances : — 

The legislature may allow the executive the power of appeal- 
ing to the nation against itself (England). 1 

The people may from ancient reverence or the habit of mili- 
tary submission be so much disposed to support the executive 
as to embolden the latter to defy the legislature (Prussia). 

The importance of foreign policy and the difficulty of taking 
it out of the hands of the executive may be so great that the 
executive will draw therefrom an influence re-acting in favour 
of its general weight and dignity (Prussia, England, and. to 
some extent, France). 

Let us now see how the founders of the American Constitu- 
tion settled the relations of the depart incuts. They were 
terribly afraid of a strong executive, and desired to reserve 
the final and decisive voice to the legislature, as representing 
the people. They OOuld not adopt the (J reek method of an 

assembly both executive and legislative, for Congress was to 
be a body with limited powers: continuous sittings would be 

1 In France the President can dissolve the Chambers, but only with the 
consent of the Senate. 



chap, xxi LEGISLATURE AND EXECUTIVE 223 

inconvenient, and the division into two equally powerful houses 
would evidently unfit it to govern with vigour and promptitude. 
Neither did they adopt the English method of a legislature 
governing through an executive dependent upon it. It was 
urged in the Philadelphia Convention of 1787 that the execu- 
tive ought to be appointed by and made accountable to the 
legislature, as being the supreme power in the national gov- 
ernment. This was over-ruled, because the majority of the 
Convention were fearful of " democratic haste and instability," 
fearful that the legislature would, in any event, become too 
powerful, and therefore anxious to build up some counter 
authority to check and balance it. By making the President 
independent, and keeping him and his ministers apart from the 
legislature, the Convention thought they were strengthening 
him, as well as protecting it from attempts on his part to 
corrupt it. 1 They were also weakening him. He lost the 
initiative in legislation which the English executive enjoys. 
He had not the English King's power of dissolving the legis- 
lature and throwing himself upon the country. Thus the 
executive magistrate seemed left at the mercy of the legisla- 
ture. It could weave so close a network of statutes round him, 
like the net of iron links which Hephaestus throws over the 
lovers in the Odyssey, that his discretion, his individual voli- 
tion, seemed to disappear, and he ceased to .be a branch of the 
government, being nothing more than a servant working under 
the eye and at the nod of his master. This would have been 
an absorption of the executive into the legislature more com- 
plete than that which England now presents, for the English 
prime minister is at any rate a leader, perhaps as necessary to 
his parliamentary majority as it is to him, whereas the Presi- 
dent would have become a sort of superior police commissioner, 
irremovable during four years, but debarred from acting either 
on Congress or on the people. 

Although the Convention may not have realized how helpless 
such a so-called Executive must be, they felt the danger of 
encroachments by an ambitious legislature, and resolved to 

1 Their sense of the danger to a legislature from corruption hy the execu- 
tive was probably quickened by what they knew of the condition of the Irish 
Parliament, full, even after 1782, of placemen and pensioners. Much of the 
best blood of Ulster had emigrated to America in the preceding half century, 
and Irish politics must have excited a good deal of interest there. 



224 THE NATIONAL GOVERNMENT part i 

strengthen him against it. This was done by giving the Presi- 
dent a veto which it requires a two-thirds vote of Congress to 
over-ride. In doing this they partly reversed their previous 
action. They had separated the President and his ministers 
from Congress. They now bestowed on him legislative func- 
tions, though in a different form. He became a distinct branch 
of the legislature, but for negative purposes only. He could 
not propose, but he could refuse. Thus the executive was 
strengthened, not as an executive, but by being connected with 
the legislature ; and the legislature, already weakened by its 
division into two co-equal houses, was further weakened by 
finding itself liable to be arrested in any new departure on 
which two-thirds of both houses were not agreed. 

When the two houses are of one mind, and the party hostile 
to the President has a two-thirds majority in both, the Execu- 
tive is almost powerless. It may be right that he should be 
powerless, because such majorities in both houses presumably 
indicate a vast preponderance of popular opinion against him. 
The fact to be emphasized is, that in this case all " balance of 
powers " is gone. The legislature has swallowed up the execu- 
tive, in virtue of the principle from which this discussion 
started, viz. that the executive is in free States only an agent 
who may be so limited by express and minute commands as 
to have no volition left him. 

The strength of Congress consists in the right to pass stat- 
utes ; the strength of the President in his right to veto them. 
But foreign affairs, as we have seen, cannot be brought within 
the scope of statutes. How then was the American legislature 
to deal with them ? There were two courses open. One was 
to leave foreign affairs to the executive, as in England, giving 
Congress the same indirect control as the English Parliament 
enjoys over the Crown and ministry. This course could not 
be taken, because the President is independent of Congress 
and irremovable during his term. The other course would 
have been for Congress, like a Greek assembly, to be its own 
foreign office, or to create a foreign affairs committee of its 
members to handle these matters. As the objections to this 
course, which would have excluded the chief magistrate from 
functions naturally incidental to his position as official repre- 
sentative of the nation, were overwhelmingly strong, a com- 



chap, xxi LEGISLATURE AND EXECUTIVE 225 

promise was made. The initiative in foreign policy and the 
conduct of negotiations were left to him, but the right of 
declaring war was reserved to Congress, and that of making 
treaties to one, the smaller and more experienced, branch of 
the legislature. A measure of authority was thus suffered to 
fall back to the Executive which would have served to raise 
materially his position had foreign questions played as large a 
part in American politics as they have in French or English. 
They have, however, been comparatively unimportant, espe- 
cially since 1815. 

It may be said that there was yet another source whence 
the executive might draw strength to support itself against the 
legislature, viz. those f mictions which the Constitution, deem- 
ing them necessarily incident to an executive, has reserved to 
the President and excluded from the competence of Congress. 
But examination shows that there is scarcely one of these which 
the long arm of legislation cannot reach. The President is com- 
mander-in-chief of the army, but the numbers and organization 
of the army are fixed by statute. The President makes 
appointments, but the Senate has the right of rejecting them, 
and Congress may pass Acts specifying the qualifications of 
appointees, and reducing the salary of any official except the 
President himself and the judges. The real strength of the 
executive therefore, the rampart from behind which it can 
resist the aggressions of the legislature, is in ordinary times 
the veto power. 1 In other words, it survives as an executive 
in virtue not of any properly executive function, but of the 
share in legislative functions which it has received ; it holds 
its ground by force, not of its separation from the legislature, 
but of its participation in a right properly belonging to the 
legislature. 2 

1 In moments of public danger, as during the War of Secession, the execu- 
tive of course springs up into immense power, partly because the command of 
the army is then of the first importance ; partly because the legislature, feel- 
ing its unfitness for swift and secret decisions, gives free rein to the Executive, 
and practically puts its law-making powers at his disposal. 

2 What is said here of the national executive and national legislature is a 
fortiori true of the State executives and State legislatures. The State gov- 
ernor has no power of independent action whatever, being checked at every 
step by State statutes, and his discretion superseded by the minute directions 
which those statutes contain. He has not even ministers, because the other 
chief officials of the State are chosen, not by himself, but by popular vote. 

VOL. I O. 



226 THE NATIONAL GOVERNMENT part i 

An authority which depends on a veto capable of being over- 
ruled by a two-thirds majority may seem frail. But the expe- 
rience of a century has shown that, owing to the almost equal 
strength of the two great parties, the Houses often differ, and 
there is rarely a two-thirds majority of the same colour in both. 
Hence the Executive has enjoyed some independence. He is 
strong for defence, if not for attack. Congress can, except 
within that narrow sphere which the Constitution has abso- 
lutely reserved to him, baffle the President, can interrogate, 
check, and worry his ministers. But it can neither drive him 
the Avay it wishes him to go, nor dismiss them for disobedience 
or incompetence. 

An individual man has some great advantages in combating 
an assembly. His counsels are less distracted. His secrets 
are better kept. He may sow discord among his antagonists. 
He can strike a more sudden blow. Julius Caesar was more 
than a match for the Senate, Cromwell for the Long Parlia- 
ment, even Louis Napoleon for the French Assembly of 1851. 
Hence, when the President happens to be a strong man, reso- 
lute, prudent, and popular, he may well hope to prevail against 
a body whom he may divide by the dexterous use of patronage, 
may weary out by inflexible patience, may overawe by winning 
the admiration of the masses, always disposed to rally round 
a striking personality. But in a struggle extending over a- 
long course of years an assembly has advantages over a suc- 
cession of officers, especially of elected officers. The Roman 
Senate encroached on the consuls, though it was neither a leg- 
islature nor representative ; the Carthaginian Councils en- 
croached on the Suffetes ; the Venetian Councils encroached on 
the Doge. Men come and go, but an assembly goes on for 
ever ; it is immortal, because while the members change, the 
policy, the passion for extending its authority, the tenacity in 
clinging to what has once been gained, remain persistent. A 
weak magistrate comes after a strong magistrate, and yields 
what his predecessor had fought for; but an assembly holds all 

He lias very little patronage; and he lias no foreign policy at all. The State 
legislature would therefore prevail against him in everything, were it not for 
his veto and for the fact that the legislature is now generally restrained (by 
the provisions of the State constitution) from passing laws on many topics. 
(Seepos*, Chapters XXXVli.-XLV.) 



chap, xxi LEGISLATUKE AND EXECUTIVE 227 

it has ever won. 1 Its pressure is steady and continuous ; it is 
always, by a sort of natural process, expanding its own powers 
and devising new methods for fettering its rival. Thus Con- 
gress, though it is no more respected or loved by the people 
now than it was seventy years ago, and has developed no 
higher capacity for promoting the best interests of the state, 
has succeeded in occupying nearly all the ground which the 
Constitution left debatable between the President and itself ; 2 
and would, did it possess a better internal organization, be 
even more plainly than it now is the supreme power in the 
government. 

In their effort to establish a balance of power, the framers 
of the Constitution so far succeeded that neither power has 
subjected the other. But they underrated the inconveniences 
which arise from the disjunction of the two chief organs of 
government. They relieved the Administration from a duty 
which European ministers find exhausting and hard to reconcile 
with the proper performance of administrative work — the 
duty of giving attendance in the legislature and taking the 
lead in its debates. They secured continuity of executive 
policy for four years at least, instead of leaving government 
at the mercy of fluctuating majorities in an excitable assembly. 
But they so narrowed the sphere of the executive as to prevent 
it from leading the country, or even its oavii party in the coun- 
try. They sought to make members of Congress independent, 
but in doing so they deprived them of some of the means 
which European legislators enjoy of learning Iioav to adminis- 
ter, of learning even how to legislate in administrative topics. 
They condemned them to be architects without science, critics 
without experience, censors without responsibility. 

1 This is still more conspicuously the case when the niemhers of the execu- 
tive government do not sit in the assembly. When they do, and lead it, their 
influence tends to restrain legislative encroachments. Even the presence of 
persons who are likely to be soon called on to form the executive has its 
influence, for they are disposed to defend the constitutional position of an 
authority to which they hope in their turn to succeed. This has been fre- 
quently seen in England. 

2 The modification (in 1869) and repeal (in 1886) of the Tenure of Office Act 
(see above, p. 64) are scarcely instances to the contrary, because that Act, 
even if constitutional, had proved difficult to work. 



CHAPTER XXII 



THE FEDERAL COURTS 



When in 1788 the loosely confederated States of North 
America united themselves into a nation, national tribunals 
were felt to be a necessary part of the national government. 
Under the Confederation there had existed no means of enforc- 
ing the treaties made or orders issued by the Congress, because 
the courts of the several States owed no duty to that feeble 
body, and had little Avill to aid it. Now that a Federal legis- 
lature had been established, whose laws were to bind directly 
the individual citizen, a Federal judicature was evidently 
needed to interpret and apply these laws, and to compel obedi- 
ence to them. The alternative would have been to entrust 
the enforcement of the laws to State courts. But State courts 
were not fitted to deal with matters of a quasi-international 
character, such as admiralty jurisdiction and rights arising 
under treaties. They supplied no means for deriding ques- 
tions between different States. They could not be trusted to 
do complete justice between their own citizens and those of 
another State. Being under the control iA' their own State 
governments, they might be forced to disregard any Federal 
law which the State disapproved; or even if they admitted 
its authority, might tail in the zeal or the power to give due 
effect to it. And being authorities co-ordinate with and inde- 
pendent of one another, with no common court of appeal 
placed over them to correct their errors or harmonize their 
views, they would be likely to interpret the Federal Constitu- 
tion and statutes iu different senses, and make the law uncer- 
tain by the variety of their decisions. These reasons pointed 
imperatively to the establishment of a new tribunal or set of 
tribunals, altogether detached from the states, as part oi' the 
machinery of the new government. Side by side of the fcbir- 

228 



chap, xxn THE FEDERAL COURTS 229 

teen (now forty-four) different sets of State courts, whose 
jurisdiction under State laws and between their own citizens 
was left untouched, there arose a new and complex system of 
Federal courts. The Constitution drew the outlines of the 
system. Congress perfected it by statutes ; and as the details 
rest upon these statutes, Congress retains the power of altering 
them. Few American institutions are better worth studying 
than this intricate judicial machinery : few deserve more ad- 
miration for the smoothness of their working : few have more 
contributed to the peace and well-being of the country. 

The Federal courts fall into three classes : — 

The Supreme court, which sits at Washington. 

The Circuit courts. 

The District courts. 

The Supreme court is directly created by Art. iii. § 1 of the 
Constitution, but with no provision as to the number of its 
judges. Originally there were six ; at present there are nine, 
a chief justice, with a salary of $ 10,500 (£2100), and eight 
associate justices (salary $10,000). The justices are nomi- 
nated by the President and confirmed by the Senate. They 
hold office during good behaviour, i.e. are removable only by 
impeachment ; and have thus a tenure even more secure than 
that of English judges, for the latter may be removed by the 
Crown on an address from both Houses of Parliament. 1 More- 
over, the English statutes secure the permanence only of the 
judges of the Supreme court of judicature, not also of judges 
of county or other local courts, while the provisions of the 
American Constitution are held to apply to the inferior as well 
as the superior Federal judges. 2 The Fathers of the Constitu- 
tion were extremely anxious to secure the independence of 
their judiciary, regarding it as a bulwark both for the people 
and for the States against aggressions of either Congress or 
the President. 3 They affirmed the life tenure by an unani- 

1 12 and 13 William III., cap. 2 ; cf. 1 George III., cap. 23. The occasional 
resistance of the parliament of Paris, whose members held office for life, to the 
French Crown may probably have confirmed the Convention of 1787 in its 
attachment to this English principle. 

2 The United States judges in the Territories stand on a different footing. 
See Chapter XLVII. 

3 See Hamilton in Federalist, No. lxxviii. : " The standard of good behaviour 
for the continuance in office of the judicial magistracy is certainly one of the 



230 THE NATIONAL GOVERNMENT part i 

mous vote in the Convention of 1787, because they deemed the 
risk of the continuance in office of an incompetent judge a less 
evil than the subserviency of all judges to the legislature, 
which might flow from a tenure dependent on legislative will. 
The result has justified their expectations. The judges have 
shown themselves independent of Congress and of party, yet 
the security of their position has rarely tempted them to 
breaches of judicial duty. Impeachment has been four times 
resorted to, once only against a justice of the Supreme court, 
and then unsuccessfully. 1 Attempts have been made, begin- 
ning from Jefferson, who argued that judges should hold 
office for terms of four or six years only, to alter the tenure of 
the Federal judges, as that of the State judges has been al- 
tered in most States ; but Congress has always rejected the 
proposed constitutional amendment. 

The Supreme court sits at Washington from October till thtW 
in every year. The presence of six judges is required to pro- 
nounce a decision, a rule which, by preventing the division of 
the court into two or more branches, retards the despatch of 
business, though it has the advantage of securing a thorough 
consideration of every case. The sittings are held in the Capi- 
tol, in the chamber formerly occupied by the Senate, and the 
justices wear black gowns, being not merely the only public 
officers, but almost the only non-ecclesiastical persons of any 
kind whatever within the bounds of the United States who use 
any official dress. 2 Every case is discussed by the whole body 
twice over, once to ascertain the opinion of the majority, which 
is then directed to be set forth in a written judgment; then 
again when that written judgment, which one of the judges lias 
prepared, is submitted for criticism and adoption as the judg- 
ment of the court. 

most valuable of the modern improvements in the pracl ice of government. In a 
monarchy it is an excellent barrier to the despotism of the prince; in a republic 
it is a no less excellent barrier to the encroachments ami oppressions of the 
legislative body." 

1 This was Samuel Chase of Maryland in ISO 1 -."".. The other cases were of 
district Federal judges. Two were convicted (one of violence, apparently dne 
to drunkenness or insanity, the Other of rebellion), the third was acquitted. 

- Save that in some universities the president and professors, and (more 
rarely) the graduates, wear academic gowns on great occasions, sneh as the 
annual Commencement, and that gowns are worn by the judges in Federal Cir- 
cuit Courts and by the judges of the New York Court of Appeals. 



chap, xxii THE FEDEKAL COUETS 231 

The Circuit courts have been created by Congress under a 
power in the Constitution to establish " inferior courts." There 
are at present nine judicial circuits, in which courts are held 
annually. Each of these has two Circuit judges (salary $6000), 
and to each there is also allotted one of the justices of the 
Supreme court. The Circuit court may be held either by a 
Circuit judge alone, or by the Supreme court Circuit justice 
alone, or by both together, or by either sitting along with the 
District judge (hereafter mentioned) of the district wherein 
the particular circuit court is held, or by the District judge 
alone. A statute of 1891 has established Circuit Courts of 
Appeals, to which cases may be brought from District or Cir- 
cuit courts, a further appeal lying, in some classes of cases, to 
the Supreme court, to which moreover, in certain cases, a di- 
rect appeal from the District or Circuit courts may still be 
brought. It is hoped that these new courts will relieve the Su- 
preme court of some of its now too heavy business. 

The District courts are the third and lowest class of Federal 
tribunals. They are at present fifty-five in number, and their 
judges receive salaries of $5000 (£1000) per annum. The 
Constitution does not expressly state whether they and the 
Circuit judges are to be appointed by the President and Sen- 
ate like the members of the Supreme court ; but it has always 
been assumed that such was the intention, and the appoint- 
ments are so made accordingly. 

For the purpose of dealing with the claims of private persons 
against the Federal government there has been established in 
Washington a special tribunal called the Court of Claims, with 
five justices (salary $4500), from which an appeal lies direct 
to the Supreme court. 

The jurisdiction of the Federal courts extends to the follow- 
ing classes of cases, on each of which I say no more than what 
seems absolutely necessary to explain their nature. 1 All other 

1 "All the enumerated cases of Federal cognizance are those •which touch 
the safety, peace, and sovereignty of the nation, or which presume that State 
attachments, State prejudices, State jealousies, and State interests might 
sometimes ohstruct or control the regular administration of justice. The 
appellate power in all these cases is founded on the clearest principles of policy 
and wisdom, and is necessary in order to preserve uniformity of decision upon 
all subjects within the purview of the Constitution." — Kent's Commentaries 
(Holmes' edition), vol. i. p. 320. 



232 THE NATIONAL GOVERNMENT part i 

cases have been left to the State courts, from which there does 
not lie (save as hereinafter specified) any appeal to the Federal 
courts. 

1. "Cases in law and equity arising under the constitution, 
the laws of the United States, and treaties made under their 
authority." 

In order to enforce the supremacy of the national Constitu- 
tion and laws over all State laws, it was necessary to place the 
former under the guardianship of the national judiciary. This 
provision accordingly brings before a Federal court every cause 
in which either party to a suit relies upon any Federal enact- 
ment. It entitles a plaintiff who bases his case on a Federal 
statute to bring his action in a Federal court : it entitles a de- 
fendant who rests his defence on a Federal enactment to have 
the action, if originally brought in a State court, removed to a 
Federal court. 1 But, of course, if the action has originally 
been brought in a State court, there is no reason for removing 
it unless the authority of the Federal enactment can be sup- 
posed to be questioned. Accordingly, the rule laid down by 
the Judiciary Act (1789) provides " for the removal to the 
supreme court of the United States of the final judgment or 
decree in any suit, rendered in the highest court of law or 
equity of a State in which a decision could be had. in which is 
drawn in question the validity of a treaty or statute of, or au- 
thority exercised under, the United States, and the decision is 
against their validity ; or where is drawn in question the valid- 
ity of a statute of, or an authority exercised under, any State, on 
the ground of their being repugnant to the Constitution, treaties. 
or laws of the United Stales, and the decision is in favour of 
their validity; or where any title, right, privilege, or immunity 
is claimed under the Constitution, or any treaty or statute or a 
commission held or authority exercised under the United States, 
and the decision is against the title, right, privilege, or immu- 
nity specially Bet up or claimed by cither party under such 
Constitution, treaty, statute, commission, or authority. But to 
authorize the removal under that act, it must appear by the 

record, cither expressly Or by (dear and necessary intendment. 

thai some one of the enumerated questions did arise in the 

1 The removal may l>i> before or after judgment given, and in the latter 
event, by way of appeal or by Writ Of error. 



ohap. xxn THE FEDERAL COURTS 233 

State court, and was there passed upon. It is not sufficient 
that it might have arisen or been applicable. And if the de- 
cision of the State court is in favour of the right, title, privilege, 
or exemption so claimed, the Judiciary Act does not authorize 
such removal, neither does it where the validity of the State law 
is drawn in question, and the decision of the State court is 
against its validity." 1 

The rule seems intricate, but the motive for it and the work- 
ing of it are plain. Where in any legal proceeding a Federal 
enactment has to be construed or applied by a State court, if 
the latter supports the Federal enactment, i.e. considers it to 
govern the case, aud applies it accordingly, the supremacy of 
Federal law is thereby recognized and admitted. There is 
therefore no reason for removing the case to a Federal tri- 
bunal. Such a tribunal could do no more to vindicate Federal 
authority than the State court has already done. But if the 
decision of the State court has been against the applicability 
of the Federal law, it is only fair that the party who suffers 
by the decision should be entitled to Federal determination of 
the point, and he has accordingly an absolute right to carry it 
before the Supreme court. 2 

The principle of this rule is applied even to executive acts 
of the Federal authorities. If, for instance, a person has been 
arrested by a Federal officer, a State court has no jurisdiction 
to release him on a writ of habeas corpus, or otherwise to 
inquire into the lawfulness of his detention by Federal author- 
ity, because, as was said by Chief- Justice Taney, "The powers 
of the general government and of the State, although both 
exist and are exercised within the same territorial limits, are 
yet separate and distinct sovereignties, acting separately and 
independently of each other, within their respective spheres. 

1 Cooley, Constitutional Limitations, p. 16. For details regarding the 
removal of suits, and the restrictions when the amount in dispute is small, see 
Cooley, Principles of Constitutional Law, p. 122 sqq. ; and see also the Act of 
3d March 1887. 

2 Federal legislation may however he in a given case needed in order to con- 
fer upon Federal courts jurisdiction over cases arising under a treaty. The 
question arose in the case of the lynching of certain Italians at New Orleans 
in 1891. The Italian Government in its complaints appealed to the treaty of 
1871 hetween the United States and Italy, hut it seems to have heen held that 
Congress had not legislated so as to enable Federal courts to deal with offences 
in breach of that treaty. 



234 THE NATIONAL GOVERNMENT part i 

And the sphere of action appropriated to the United States is 
as far beyond the reach of the judicial process issued by a 
State court as if the line of division was traced by landmarks 
and monuments visible to the eye." l 

2. " Cases affecting ambassadors, other public ministers, and 
consuls." 

As these persons have an international character, it would 
be improper to allow them to be dealt with by a State court 
which has nothing to do with the national government, and 
for whose learning and respectability there may exist no such 
securities as those that surround the Federal courts. 

3. "Cases of admiralty and maritime jurisdiction." 

These are deemed to include not only prize cases but all 
maritime contracts, and all transactions relating to navigation, 
as well on the navigable lakes and rivers of the United States 
as on the high seas. 

4. " Controversies to which the United States shall be a 
party." 

This provision is obviously needed to protect the United 
States from being obliged to sue or be sued in a State court, to 
whose decision the national government could not be expected 
to submit. When a pecuniary claim is sought to be estab- 
lished against the Federal government, the proper tribunal is 
the Court of Claims. 

5. "Controversies between two or more States, between a 
State mid citizens of another State, between citizens of dif- 
ferent States, between citizens of the same State claiming 
lands under grants of different States, and between a State, 
or the citizens thereof, and foreign States, citizens, or sub- 
jects." 

In all these cases a State court is likely to be. or at any rate 
to seem, a partial tribunal, and it is therefore desirable to vest 
the jurisdiction in judges equally unconnected with the plain- 
tiff and the defendant. By securing recourse to an unbiassed 
and competent tribunal, the citizens of every State obtain bet- 
ter commercial facilities than they could otherwise count upon, 
lor their credit will stand higher with persons belonging to 
other States if the Latter know that their legal rights are under 
the protection, not of local ami possibly prejudiced judges, but 

1 Ableman v. Booth. 21 How. 516. 



chap, xxn THE FEDERAL COURTS 235 

of magistrates named by the national government, and un- 
amenable to local influences. 1 

One important part of the jurisdiction here conveyed has 
been subsequently withdrawn from the Federal judicature. 
When the Constitution was submitted to the people, a principal 
objection urged against it was that it exposed a State, although 
a sovereign commonwealth, to be sued by the individual citi- 
zens of some other State. That one State should sue another 
was perhaps necessary, for what other way could be discovered 
of terminating disputes ? But the power as well as the dig- 
nity of a State would be gone if it could be dragged into court 
by a private plaintiff. Hamilton (writing in the Federalist) 
met the objection by arguing that the jurisdiction-giving clause 
of the Constitution ought not to be so construed, but must 
be read as being subject to the general doctrine that a sovereign 
body cannot be sued by an individual without its own consent, 
a doctrine not to be excluded by mere implication but only by 
express words. 2 However, in 1793 the Supreme court, in the 
famous case of CJiisholm v. The /State of Georgia, 3 construed 
the Constitution in the very sense which Hamilton had denied, 
holding that an action did lie against Georgia at the suit of a 
private plaintiff ; and when Georgia protested and refused to 
appear, the court proceeded (in 1794) to give judgment against 
her by default in case she should not appear and plead before 
a day fixed. Her cries of rage filled the Union, and brought 
other States to her help. An amendment (the eleventh) to 
the Constitution was passed through Congress and duly 
accepted by the requisite majority of the States, which de- 
clares that "the judicial power of the United States shall not 
be construed to extend to any suit commenced or prosecuted 
against one of the United States by citizens of another State or 
by citizens or subjects of any foreign state." 4 Under the protec- 

1 There are countries in Europe with which foreign merchants are unwilling 
to do business because they can seldom obtain justice against a native. Local 
feeling was, of course, much stronger in the America of 1787 than it is now. 
Englishmen who had claims against American citizens failed to obtain their 
enforcement from 1783 till the Federal courts were established in 1789. 

2 Federalist, No. lxxxi. The same view was contemporaneously maintained 
by John Marshall (afterwards Chief-Justice) in the Virginia Convention of 
1788. 

3 2 Dall. 419. 

4 It has been held that the amendment applies only when a State is a party 



236 THE NATIONAL GOVERNMENT part i 

tion of this amendment, several have with impunity repudi- 
ated their debts. 

The jurisdiction of the Supreme court is original in cases 
affecting ambassadors, and wherever a State is a party; in 
other cases it is appellate ; that is, cases may be brought to it 
from the inferior Federal courts and (under the circumstances 
before mentioned) from State courts. The jurisdiction is in 
some matters exclusive, in others concurrent with that of the 
State courts. Upon these subjects there have arisen many 
difficult and intricate questions, which I must pass by, because 
they would be unintelligible without long explanations. 1 One 
point, however, may be noted. The State courts cannot be in- 
vested by Congress with any jurisdiction, for Congress has no 
authority over them, and is not permitted by the Constitution 
to delegate any judicial powers to them. Hence the jurisdic- 
tion of a State court, wherever it is concurrent with that of 
Federal judges, is a jurisdiction which the court possesses of 
its own right, independent of the Constitution. And in some 
instances where congressional statutes have purported to im- 
pose duties on State courts, the latter have refused to accept 
and discharge them. 

The criminal jurisdiction of the Federal courts, which extends 
to all offences against Federal law, is purely statutory. " The 
United States as such can have no common law. It derives its 
powers from the grant of the people made by the Constitution, 
and they are all to be found in the written law, and not else- 
where." 2 

The procedure of the Federal courts is prescribed by Congress, 
subject to some few rules contained in the Constitution, such as 
those which preserve the right of trial by jury in criminal cases ■"• 
and suits at common law. 4 As "eases in law and equity" are 
mentioned, it is held that Congress could not accomplish such 

to the record, and therefore does not apply to the case of a State holding shares 
in a corporation. Neither docs it apply to appeals and writs of error. 

Very recently (March 1892) the Supreme court have decided (by a lar^e 
majority) in the case of Uniti d Stnt< * v. '/*. xas that the United States can sue 
a state. 

1 The lawyer curious in such matters may consult Story's Commentaries on 
tin Constitution, chapter xwviii.. and the judgments of ( 'hief-.Tust ice Marshall 

in the eases of Martin \. Hunter (\ Wheat 304) and Cohens v. Virginia 
(6 Wheat. 406). 

- Cooley, Principh M, p. 181, ;; Art. iii. § 2. 4 Amendment vii. § 1. 



chap, xxn THE FEDERAL COURTS 237 

a fusion of law and equity as lias been effected in several States 
of the Union, and was effected in England in 1873, but must 
maintain these methods of procedure as distinct, though ad- 
ministered by the same judges. 

The law applied in the Federal courts is of course first and 
foremost that enacted by the Federal legislature, which, when 
it is applicable, prevails against any State law. But very often, 
as for instance in suits between citizens of different States, 
Federal law does not, or does only in a secondary way, come 
in question. In such instances the first thing is to determine 
what law it is that ought to govern the case, each State having 
a law of its own ; and when this has been ascertained, it is 
applied to the facts, just as an English court would apply 
French or Scotch law in pronouncing on the validity of a mar- 
riage contracted in France or Scotland. In administering the 
law of any State (including its constitution, its statutes, and 
its common law, which in Louisiana is the civil law in its 
French form) the Federal courts ought to follow the decisions 
of the State courts, treating those decisions as the highest au- 
thority on the law of the particular State. This doctrine is so 
fully applied that the Supreme court has even over-ruled its 
own previous determinations on a point of State law in order 
to bring itself into agreement with the view of the highest court 
of the particular State. Needless to say, the State courts fol- 
low the decisions of the Federal courts upon questions of Fed- 
eral law. 1 

For the execution of its powers each Federal court has 
attached to it an officer called the United States marshal, cor- 
responding to the sheriff in the State governments, whose duty 
it is to carry out its writs, judgments, and orders by arresting 
prisoners, levying execution, putting persons in possession, and 
so forth. He is entitled, if resisted, to call on all good citizens 
for help ; if they will not or cannot render it, he must refer to 

1 "The judicial department of every government is the appropriate organ 
for construing the legislative acts of that government. . . . On this principle 
the construction given by this (the supreme) court to the Constitution and 
laws of the United States is received by all as the true construction ; and on 
the same principle the construction given by the courts of the various States to 
the legislative acts of those States is received as true, unless they come in con- 
flict with the Constitution, laws, or treaties of the Uuited States." — Marshall, 
C.-.T., in Elmendorfy. Taylor, 10 Wheat. 109. 



238 THE NATIONAL GOVERNMENT part i 

Washington and obtain the aid of Federal troops. There exists 
also in every judiciary district a Federal public prosecutor, 
called the United States district attorney, who institutes pro- 
ceedings against persons transgressing Federal laws or evading 
the discharge of obligations to the Federal treasury. Both sets 
of officials are under the direction of the attorney-general, as 
head of the department of justice. They constitute a net-work 
of Federal authorities covering the whole territory of the Union, 
and independent of the officers of the State courts and of 
the public prosecutors who represent the State governments. 
Where a State maintains a gaol for the reception of Federal 
prisoners, the U. S. marshal delivers his prisoners to the State 
gaoler; where this provision is wanting, he must himself 
arrange for their custody. 

The European reader may ask how it is possible to work a 
system so extremely complex, under which every yard of 
ground in the Union is covered by two jurisdictions, with two 
sets of judges and two sets of officers, responsible to different 
superiors, their spheres of action divided only by an ideal line, 
and their action liable in practice to clash. The answer is that 
the system does work, and now, after a hundred years of ex- 
perience, works smoothly. It is more costly than the simpler 
systems of France, Prussia, or England, though, owing to the 
small salaries paid, the expense falls rather on litigants than on 
the public treasury. But it leads to few conflicts or heart- 
burnings, because the key to all difficulties is found in the 
principle that wherever Federal law is applicable Federal law 
must prevail, and that every suitor who contends that Federal 
law is applicable is entitled to have the point determined by a 
Federal court. The acumen of the lawyers and judges, the 
wealth of accumulated precedents, make the solution of these 
questions of applicability and jurisdiction easier than a Euro- 
pean practitioner can realize : while the law-abiding habits of 
the people and their sense that the supremacy of Federal law 
and jurisdiction works to the common benefit of the whole 
people, secure general obedience to Federal judgments. The 
enforcement of the law. especially the criminal law, in Borne 
parts of America leaves much to he desired; but the difficulties 
which arise arc now due not to conflicts between state and 
Federal pretensions hut to other tendencies equally hostile to 
both authorities. 



chap, xxii THE FEDERAL COURTS 239 

A word in conclusion as to the separation of the judicial 
from the other two departments, a point on which the framers 
of the Constitution laid great stress. The functions of the 
legislature are more easily distinguished from those of the 
judiciary than from those of the executive. The legislature 
makes the law, the judiciary applies it to particular cases by 
investigating the facts and, when these have been ascertained, 
by declaring what rule of law governs them. Nevertheless 
there are certain points in which the two departments touch, 
certain ground debatable between the judiciary on the one 
hand and the legislature on the other. In most countries the 
courts have grown out of the legislature ; or rather, the sover- 
eign body, which, like Parliament, was originally both a law 
court and a legislature, has delivered over the bulk of its judi- 
cial duties to other persons, while retaining some few to be 
still exercised by itself. 

America has in general followed the principles and practice 
of England. Like England, she creates no separate administra- 
tive tribunals such as exist in the states of the European con- 
tinent, but allows officials to be sued in or indicted before 
the ordinary courts. Like England, she has given the judges 
(i.e. the Federal judges) a position secured against the caprice 
of the legislature or executive. Like England, she recognizes 
judicial decisions as law until some statute has set them aside. 
In one respect she has improved on England — viz. in forbid- 
ding the legislature to exercise the powers of a criminal court, 
by passing acts of attainder or of pains and penalties, measures 
still legal, though virtually obsolete, in England. 1 In others, 
she stands behind England. England has practically ceased to 
use one branch of her Parliament as a court for the trial of 
impeachments. America still occasionally throws upon ODe 
House of Congress this function ; which, though it is ill suited 
to an ordinary court of justice, is scarcely better discharged by 
a political assembly. England has remitted to the courts of 
law the trial of disputed parliamentary elections ; America still 
reserves these for Congress, and allows them to be disposed 
of by partisan votes, often with little regard to the merits. 

1 Neither House of Congress can punish a witness for contempt, after the 
fashion of the British Parliament (Kilboum v. Thompson, 103 U. S. p. 168) . 
See note to Chapter XXXIII. post. 



240 THE NATIONAL GOVERNMENT part i 

Special and local bills which vest in private hands certain 
rights of the State, such as public franchises, or the power 
of taking private property against the owner's will, are, though 
in form exercises of legislative power, really fitter to be exam- 
ined and settled by judicial methods than by the loose opinion, 
the private motives, the lobbying, which determine legislative 
decisions where the control of public opinion is insufficiently 
provided for. England accordingly, though she refers such 
bills to committees of Parliament, directs these committees to 
apply a quasi-judicial procedure, and to decide according to the 
evidence tendered. America takes no such securities, but han- 
dles these bills like any others. Here therefore we see three 
pieces of ground debatable between the legislature and the 
judiciary. All of them originally belonged to the legislature. 
All in America still belong to it. England, however, has 
abandoned the first, has delivered over the second to the 
judges, and treats the third as matter to be dealt with by judi- 
cial rather than legislative methods. Such points of difference 
are worth noting, because the impression has prevailed in 
Europe that America is the country in which the province of 
the judiciary has been most widely extended. 



CHAPTER XXIII 

THE COURTS AND THE CONSTITUTION 

No feature in the government of the United States has 
awakened so much curiosity in the European mind, caused so 
much discussion, received so much admiration, and been more 
frequently misunderstood, than the duties assigned to the 
Supreme Court and the functions which it discharges in guard- 
ing the ark of the Constitution. Yet there is really no mystery 
about the matter. It is not a novel device. It is not a com- 
plicated device. It is the simplest thing in the world if ap- 
proached from the right side. 

In England and many other modern States there is no differ- 
ence in authority between one statute and another. All are 
made by the legislature : all can be changed by the legislature. 
What are called in England constitutional statutes, such as 
Magna Charta, the Bill of Rights, the Act of Settlement, the 
Acts of Union with Scotland and Ireland, are merely ordinary 
laws, which conld be repealed by Parliament at any moment in 
exactly the same way as it can repeal a highway act or lower 
the duty on tobacco. 1 The habit has grown up of talking of 
the British Constitution as if it were a fixed and definite thing. 
But there is in England no such thing as a Constitution apart 
from the rest of the law : there is merely a mass of law, con- 
sisting partly of statutes and partly of decided cases and ac- 
cepted usages, in conformity with which the government of 
the country is carried on from day to day, but which is being 
constantly modified by fresh statutes and cases. The same 

1 This doctrine, although long since well settled, would not have heen gener- 
ally accepted in the beginning of the seventeenth century. As Sir Thomas 
More had maintained that an Act of Parliament could not make the king 
supreme head of the Church, so Coke held that the Common Law controlled 
Acts of Parliament and adjudged them void when against common right. 
VOL. I R 241 



242 THE NATIONAL GOVERNMENT part i 

thing existed in ancient Borne, and everywhere in Europe a 
century ago. It is, so to speak, the " natural," and used to be 
the normal, condition of things in all countries, free or des- 
potic. 

The condition of America is wholly different. There the 
name Constitution designates a particular instrument adopted 
in 1788, amended in some points since, which is the foundation 
of the national government. This Constitution was ratified 
and made binding, not by Congress, but by the people acting 
through conventions assembled in the thirteen States which 
then composed the Confederation. It created a legislature of 
two houses ; but that legislature, which we call Congress, has 
no power to alter it in the smallest particular. That which the 
people have enacted, the people only can alter or repeal. 

Here therefore we observe two capital differences between 
England and the United States. The former has left the out- 
lines as well as the details of her system of government to be 
gathered from a multitude of statutes and cases. The latter 
has drawn them out in one comprehensive fundamental enact- 
ment. The former has placed these so-called constitutional 
laws at the mercy of her legislature, which can abolish when 
it pleases any institution of the country, the Crown, the House 
of Lords, the Established Church, the House of Commons. Par- 
liament itself. 1 The latter has placed her Constitution alto- 
gether out of the reach of Congress, providing a method of 
amendment whose difficulty is shown by the fact that it has 
been very sparingly used. 

In England Parliament is omnipotent. In America Congress 
is doubly restricted. It can make laws only for certain pur- 
poses specified in the Constitution, and in legislating for these 
purposes it must not transgress any provision of the Constitu- 
tion itself. The stream cannot rise above its source. 

1 Parliament of course cannot restrict its own powers by any particular Act 
because that Act might be repealed in a subsequent session, and indeed any 
subsequent Act inconsistent with any of its provisions repeals ipso facto that 
provision. (For instance, the Act of Union with Scotland ((! Anne, c. 11) 
declared certain provisions of the Union, for the establishment of Presbyterian 
church government in Scotland, to be "essential and fundamental parts of the 
Union," but some of those provisions have been altered by subsequent 
statutes.) Parliament could, however, extinguish itself by formally dissolving 
itself, leaving no legal means whereby a subsequent Parliament could be 
summoned. 



chap, xxin THE COURTS AND THE CONSTITUTION 243 

Suppose, however, that Congress does so transgress, or does 
overpass the specified purposes. It may do so intentionally : 
it is likely to do so inadvertently. What happens ? If the 
Constitution is to be respected, there must be some means of 
securing it against Congress. If a usurpation of power is at- 
tempted, how is it to be checked ? If a mistake is committed, 
who sets it right ? 

The point may be elucidated by referring it to a wider cate- 
gory, familiar to lawyers and easily comprehensible by laymen, 
that of acts done by an agent for a principle. If a land-owner 
directs his bailiff to collect rents for him, or to pay debts due 
to tradesmen, the bailiff has evidently no authority to bind his 
employer by any act beyond the instructions given him, as, for 
instance, by contracting to buy a field. If a manufacturer 
directs his foreman to make rules for the hours of work and 
meals in the factory, and the foreman makes rules not only for 
those purposes, but also prescribing what clothes the workmen 
shall wear and what church they shall attend, the latter rules 
have not the force of the employer's will behind them, and the 
workmen are not to be blamed for neglecting them. 

The same principle applies to public agents. In every coun- 
try it happens that acts are directed to be done and rules to be 
made by bodies which are in the position of agents, i.e. which 
have received from some superior authority a limited power of 
acting and of rule-making, a power to be used only for certain 
purposes or under certain conditions. Where this power is 
duly exercised, the act or rule of the subordinate body has all 
the force of an act done or rule made by the superior author- 
ity, and is deemed to be made by it. And if the latter be a 
law-making body, the rule of the subordinate body is therefore 
also a law. But if the subordinate body attempts to transcend 
the power committed to it, and makes rules for other purposes 
•or under other conditions than those specified by the superior 
authority, these rules are not law, but are null and void. 
Their validity depends on their being within the scope of the 
law-making power conferred by the superior authority, and as 
they have passed outside that scope they are invalid. They 
do not justify any act done under them forbidden by the ordi- 
nary law. They ought not to be obeyed or in any way regarded 
by the citizens, because they are not law. 



244 THE NATIONAL GOVERNMENT part i 

The same principle applies to acts done by an executive 
officer beyond the scope of his legal authority, In free coun- 
tries an individual citizen is justified in disobeying the orders of 
a magistrate if he correctly thinks these orders to be in excess 
of the magistrate's legal power, because in that case they are 
not really the orders of a magistrate, but of a private person 
affecting to act as a magistrate. In England, for instance, if 
a secretary of state, or a police constable, does any act which 
the citizen affected by it rightly deems unwarranted, the 
citizen may resist, by force if necessary, relying on the ordi- 
nary courts of the land to sustain him. This is a cod sequence 
of the English doctrine that all executive power is strictly 
limited by the law, and is indeed a corner-stone of English 
liberty. 1 It is applied even as against the dominant branch of 
the legislature. If the House of Commons should act in 
excess of the power which the law and custom of Parliament 
has secured to it, a private individual may resist the officers of 
the House and the courts will protect him by directing him to 
be acquitted if he is prosecuted, or, if he is plaintiff in a civil 
action, by giving judgment in his favour. 

An obvious instance of the way in which rules or laws made 
by subordinate bodies are treated is afforded by the bye-laws 
made by an English railway company or municipal corpora- 
tion under powers conferred by an Act of Parliament. So 
long as these bye-laws are within the scope of the authority 
which the Act of Parliament has given, they are good, i.e. they 
are laws, just as much as if enacted in the Act. If they go 
beyond it, they are bad, that is to say, they bind nobody and 
cannot be enforced. If a railway company which has received 
power to make bye-laws imposing fines up to the amount of 
forty shillings, makes a bye-law punishing any person who 
enters or quits a train in motion with a fine of fifty shillings 
or a week's imprisonment, that bye-law is invalid, that is to 
say, it is not law at all, and no magistrate can either imprison 
or impose a fine of fifty shillings on a person accused of con- 
travening it. If a municipal corporation has been by statute 
empowered to enter into contracts for the letting of lands 

1 See as to the different doctrine and pracl ice of the European continent, and 
particularly as to the " administrative law " of France, the instructive remarks 
of Mr. Dicey in his Law of the Constitution. 



chap, xxiii THE COURTS AND THE CONSTITUTION 245 

vested in it, and directed to make bye-laws, for the purpose of 
letting, which shall provide, among other things, for the adver- 
tising of all lands intended to be let, and if it makes a bye-law 
in which no provision is made for advertising, and under that 
bye-law contracts for the letting of a piece of land, the letting 
made in pursuance of this bye-law is void, and conveys no title 
to the purchaser. All this is obvious to a lay as well as to a 
legal mind ; and it is no less obvious that the question of the 
validity of the bye-law, and of what has been done under it, 
is one to be decided not by the municipal corporation or com- 
pany, but by the courts of justice of the land. 
/ Now, in the United States the position of Congress may for 
trVis purpose be compared to that of an English municipal cor- 
poration or railway company. The supreme law-making power 
is the People, that is, the qualified voters, acting in a pre- 
scribed way. The people have by their supreme law, the Con- 
stitution, given to Congress a delegated and limited power of 
legislation. Every statute passed under that power conform- 
ably to the Constitution has all the authority of the Consti- 
tution behind it. Any statute passed which goes beyond that 
power is invalid, and incapable of enforcement. It is in fact 
not a statute at all, because Congress in passing it was 
not really a law-making body, but a mere group of private 
persons. "> 

Says Chief-Justice Marshall, " The powers of the legislature 
are defined and limited ; and that those limits may not be mis- 
taken or forgotten, the Constitution is written. To what pur- 
pose are powers limited and to what purpose is that limitation 
committed to writing, if those limits may at any time be 
passed by those intended to be restrained ? The Constitution 
is either a superior paramount law, unchangeable by ordinary 
means, or it is on a level with ordinary legislative acts, and 
like any other acts, is alterable when the legislature shall 
please to alter it. If the former part of the alternative be true, 
then a legislative act contrary to the Constitution is not law. 
If the latter part be true, then written constitutions are 
absurd attempts on the part of the people to limit a power in 
its own nature illimitable." There is of course this enormous 
difference between Congress and any subordinate law-making 
authority in England, that Congress is supreme w r ithin its 



246 THE NATIONAL GOVERNMENT part i 

proper sphere, the people having no higher permanent organ 
to override or repeal such statutes as Congress may pass with- 
in that sphere ; whereas in England there exists in Parliament 
a constantly present supervising authority, which may at any 
moment cancel or modify what any subordinate body may have 
enacted, whether within or without the scope of its delegated 
powers. This is a momentous distinction. But it does not 
affect the special point which I desire to illustrate, viz. that a 
statute passed by Congress beyond the scope of its powers is 
of no more effect than a bye-law made ultra vires by an English 
municipality. There is no mystery so far : there is merely an 
application of the ordinary principles of the law of agency. 
But the question remains, How and by whom, in case of dis- 
pute, is the validity or invalidity of a statute to be deter- 
mined ? 

Such determination is to be effected by setting the statute 
side by side with the Constitution, and considering whether 
there is any discrepancy between them. Is the purpose of the 
statute one of the purposes mentioned or implied in the Con- 
stitution ? Does it in pursuing that purpose contain anything 
which violates any clause of the Constitution ? Sometimes 
this is a simple question, which an intelligent layman may 
answer. More frequently it is a difficult one, which needs not 
only the subtlety of the trained lawyer, but a knowledge of 
former cases which have thrown light on the same or a similar 
point. In any event it is an important question, whose solution 
ought to proceed from a weighty authority. It is a question 
of interpretation, that is, of determining the true meaning both 
of the superior law and of the inferior law, so as to discover 
whether they are inconsistent. 

Now the interpretation of laws belongs to courts of justice. 
A law implies a tribunal, not only in order to direct its enforce- 
ment against individuals, but to adjust it to the facts, i.e. to 
determine its precise meaning and apply that meaning to the 
circumstances of the particular case. The legislature, which 
can only speak generally, makes every law in reliance on this 
power of interpretation. It is therefore obvious that the 
question, whether a congressional statute offends against the 
Constitution, must be determined by the courts, not merely 
because it is a question of legal construction, but because there 



chap, xxni THE COURTS AND THE CONSTITUTION 247 



is nobody else to determine it. Congress cannot do so, because 
Congress is a party interested. If such a body as Congress 
were permitted to decide whether the acts it had passed were 
constitutional, it would of course decide in its own favour, and 
to allow it to decide would be to put the Constitution at its 
mercy. The President cannot, because he is not a lawyer, and 
he also may be personally interested. There remain only the 
courts, and these must be the National or Federal courts, 
because no other courts can be relied on in such cases. So far 
gain there is no mystery about the matter. 
Now, however, we arrive at a feature which complicates the 
ets, though it introduces no new principle. The United 
States is a federation of commonwealths, each of which has its 
own constitution and laws. The Federal Constitution not 
only gives certain powers to Congress, as the national legis- 
lature, but recognizes certain powers in the States, in virtue 
whereof their respective peoples have enacted fundamental 
State laws (the State constitutions) and have enabled their 
respective legislatures to pass State statutes. However, as 
the nation takes precedence of the States, the Federal Consti- 
tution, which is the supreme law of the land everywhere, and 
the statutes duly made by Congress under it, are preferred to 
all State constitutions and statutes ; and if any conflict arise 
between them, the latter must give way. The same phenom- 
enon therefore occurs as in the case of an inconsistency be- 
tween the Constitution and a congressional statute. Where it 
is shown that a State constitution or statute infringes either 
the Federal Constitution or a Federal (i.e. congressional) 
statute, the State constitution or statute must be declared 
invalid. And this declaration must, of course, proceed from 
the courts, nor solely from the Federal courts ; because when 
a State court decides against its own statutes or constitution 
in favour of a Federal law, its decision is final. 

It will be observed that in all this there is no conflict 
between the law courts and any legislative body. The conflict 
is between different kinds of laws. The duty of the judges is 
as strictly confined to the interpretation of the laws cited to 
them as it is in England or France ; and the only difference 
is that in America there are laws of four different degrees 
of authority, whereas in England all laws (excluding mere 



248 THE NATIONAL GOVERNMENT part i 

bye-laws, Privy Council ordinances, etc.) are equal because all 
proceed from Parliament. These four kinds of American laws 
are: — 

I. The Federal Constitution. 
II. Federal statutes. 
III. State constitutions. 
IY. State statutes. 1 

The American law court therefore does not itself enter on 
any conflict with the legislature. It merely secures to each 
kind of law its due authority. It does not even preside over 
a conflict and decide it, for the relative strength of each kind 
of law has been settled already. All the court does is to 
declare that a conflict exists between two laws of different 
degrees of authority. Then the question is at an end, for the 
weaker law is extinct, or, to put the point more exactly, a flaw 
has been indicated which makes the world see that if the view 
of the court be correct, the law is in fact null. The court 
decides nothing but the case before it : and any one may, if he 
thinks the court wrong, bring up a fresh case raising again the 
question whether the law is valid. 2 

This is the abstract statement of the matter ; but there is 
also an historical one. Many of the American colonies received 
charters from the British Crown, which created or recognized 
colonial assemblies, and endowed these with certain powers 
of making laws for the colony. Such powers were of course 
limited, partly by the charter, partly by usage, and were sub- 
ject to the superior authority of the Crown or of the Brit- 
ish Parliament. Questions sometimes arose in colonial days 
whether the statutes made by these assemblies were in excess 
of the powers conferred by the charter; and if the statutes 
were found to be in excess, they were held invalid by the 

1 Of these, the Federal Constitution prevails against all other laws. Federal 
statutes, if made in pursuance of and conformably to the Constitution, prevail 
against III. and IV. If in excess of the powers granted by the Constitution, 
they are to that extent invalid. A State constitution yields to I. and II., but 
prevails against the statutes of the State. 

2 This happened in the Legal Tender question (see next chapter). But in 
ninety-nine instances out of a hundred, the legal profession and the public 
admit the correctness, and therewith the authority, of the view which the 
court has taken. The court has itself declared that its declaration of the 
unconstitutionality of a statute must nowise he taken as amounting to a repeal 
of that statute. See In re Rahrer, 140 U. S. Rep. p. 54."). 



chap, xxiii THE COURTS AND THE CONSTITUTION 249 

courts, that is to say, in the first instance, by the colonial 
courts, or, if the matter was carried to England, by the Privy 
Council. 1 

When the thirteen American colonies asserted their indepen- 
dence in 1776, they replaced these old charters by new consti- 
tutions, 2 and by these constitutions entrusted their respective 
legislative assemblies with certain specified and limited legis- 
lative powers. The same question was then liable to recur with 
regard to a statute passed by one of these assemblies. If such a 
statute was in excess of the power which the State constitu- 
tion conferred on the State legislature, or in any way trans- 
gressed the provisions of that constitution, it was invalid, and 
acts done under it were void. The question, like any other 
question of law, came for decision before the courts of the 
State. Thus, in 178G, the supreme court of Rhode Island held 
that a statute of the legislature which purported to make a 
penalty collectible on summary conviction, without trial by 
jury, gave the court no jurisdiction, i.e. was invalid, the colo- 
nial charter, which was then still in force as the constitution 
of the State, having secured the right of trial by jury in all 
cases. 3 When the Constitution of the United States came into 
operation in 1789, and was declared to be paramount to all 
State constitutions and State statutes, no new principle was 
introduced; there was merely a new application, as between 
the nation and the States, of the old doctrine that a subordi- 
nate and limited legislature cannot pass beyond the limits fixed 
for it. It was clear, on general principles, that a State law 
incompatible with a duly enacted Federal law must give way ; 
the only question was : What courts are to pronounce upon the 

1 The same thing happens even now as regards the British colonies. The 
question was lately argued before the Privy Council whether the legislature of 
the Dominion of Canada, created by the British North America Act of 1867 
(an imperial statute), had power to extinguish the right of appeal from the 
supreme court of Canada to the British Queen in council. 

2 Connecticut and Rhode Island, however, went on under the old charters, 
with which they were well content. See as to this whole subject, Chapter 
XXXVII., on State Constitutions. 

3 In the case of Trevett v. Weeden, the first case of importance in which a 
legislative act was held unconstitutional for incompatibility witb a State con- 
stitution, although the doctrine seems to have been laid down by the supreme 
court of New Jersey in Holmes v. Walton (1780), as well as in Virginia in 
1782, and in New York in 1784. See Judge Elliott's article in Political Science 
Quarterhj for June 1890, p. 233. 



250 THE NATIONAL GOVERNMENT part i 

question whether such incompatibility exists ? Who is to 
decide whether or no the authority given to Congress has been 
exceeded, and whether or no the State law contravenes the 
Federal Constitution or a Federal statute ? 

In 1787 the only pre-existing courts were the State courts. 
If a case coming before them raised the point whether a State 
constitution or statute was inconsistent with the Federal Con- 
stitution or a statute of Congress, it was their duty to decide 
it, like any other point of law. But their decision could not 
safely be accepted as final, because, being themselves the off- 
spring of, and amenable to the State governments, they would 
naturally tend to uphold State laws against the Federal Consti- 
tution or statutes. Hence it became necessary to call in courts 
created by the central Federal authority and co-extensive with 
it — that is to say, those Federal courts which have been 
already described. The matter seems complicated, because 
we have to consider not only the superiority of the Federal 
Constitution to the Federal legislature but also the superiority 
of both the Federal Constitution and Federal statutes to all 
State laws. But the principle is the same and equally simple 
in both sets of cases. Both are merely instances of the doc- 
trine, that a law-making body must not exceed its powers, and 
that when it has attempted to exceed its powers, its so-called 
statutes are not laws at all, and cannot be enforced. 

In America the supreme law-making power resides in the 
people. Whatever they enact is universally binding. All 
other law-making bodies are subordinate, and the enactments 
of such bodies must conform to the supreme law, else they 
will perish at its touch, as a fishing smack gees down before 
an ocean steamer. And these subordinate enactments, if at 
variance with the supreme law. are invalid from the first, 
although their invalidity may remain for years unnoticed or 
unproved. It can be proved only by the decision of a court in 
a case which raises the point for determination. The phe- 
nomenon cannot arise in a country whose legislature is omnip- 
otent, but naturally 1 arises wherever we find a legislature 

1 l do not say "necessarily," because there are countries on the European 
(■•mi i unit where, although there exist*. :i constitution superior to the Legislature, 
the courts are uot allowed to hold a legislative act invalid, because the legis- 
lature Is deemed to have the right of taking its own view of the constitution. 
This seems to be the case i>oth in France and in Switzerland. So in the Gter- 






chap, xxin THE COURTS AND THE CONSTITUTION 251 

limited by a superior authority, such, as a constitution which 
the legislature cannot alter. 

In England the judges interpret Acts of Parliament exactly 
as American judges interpret statutes coming before them. If 
they find an Act conflicting with a decided case, they prefer 
the Act to the case, as being of higher authority. As between 
two conflicting Acts, they prefer the latter, because it is the 
last expression of the mind of Parliament. If they misinter- 
pret the mind of Parliament, i.e. if they construe an Act in a 
sense which Parliament did not really intend, their decision is 
nevertheless valid, and will usually be followed by other courts 
of the same rank until Parliament speaks its mind again by 
another Act. The only difference between their position and 
that of their American brethren is that they have never to 
distinguish between the authority of one enactment and of 
another, otherwise than by looking to the date, and that they 
have therefore never to inquire whether an Act of Parliament 
was invalid when first passed. Invalid it could not have been, 
because Parliament is omnipotent, and Parliament is omnipo- 
tent because Parliament is deemed to be the people. Parlia- 
ment is not a body with delegated or limited authority. The 
whole fulness of popular power dwells in it. The whole 
nation is supposed to be present within its walls. 1 Its will is 
law ; or, as Dante says in a famous line, " its will is power." 

There is a story told of an intelligent Englishman who, having 
heard that the Supreme Federal Court was created to protect 
the. Constitution, and had authority given it to annul bad laws, 
spent two days in hunting up and down the Federal Constitu- 
tion for the provisions he had been told to admire. No won- 

man Empire the Reichskainmergericht cannot question an act of the imperial 
legislature ; and in Belgium, though it has been thought that the courts 
possess such a power, there seems to be no instance of its exercise. 

1 The old writers say that the reason why an Act of Parliament requires no 
public notification in the country is because it is deemed to be made by the 
whole nation, so that every person is present at the making of it. It is cer- 
tainly true that the orthodox legal view of Parliament never regards it as 
exercising powers that can in any sense be called delegated. A remarkable 
example of the power which Parliament can exert as an ultimately and com- 
pletely sovereign body is afforded by the Septennial Act (1 Geo. I. st. 2, cap. 
38). By this statute a Parliament in which the House of Commons had been 
elected for three years only, under the Triennial Act then in force, prolonged 
not only the possible duration of future Parliaments but its own term to seven 
years, taking to itself four years of power which the electors had not given it. 



' 



r 



252 THE NATIONAL GOVERNMENT part i 

der he did not find them, for there is not a word in the 
Constitution on the subject. The powers of the Federal 
courts are the same as those of all other courts in civilized 
countries, or rather they differ from those of other courts by 
defect and not by excess, being limited to certain classes of 
cases. The so-called "power of annulling an unconstitu- 
tional statute " is a duty rather than a power, and a duty 
incumbent on the humblest State court when a case raising 
the point comes before it no less than on the Supreme Federal 
Court at Washington. When therefore people talk, as they 
sometimes do, even in the United States, of the Supreme 
court as "the guardian of the Constitution," they mean noth- 
ing more than that it is the final court of appeal, before which 
suits involving constitutional questions may be brought up by 
the parties for decision. In so far the phrase is legitimate. 
But the functions of the Supreme court are the same in kind 
as those of all other courts, State as well as Federal. Its duty 
and theirs is simply to declare and apply the law ; and where 
any court, be it a State court of first instance, or the Federal 
court of last instance, finds a law of lower authority clashing 
with a law of higher authority, it must reject the former, as 
being really no law, and enforce the latter. 

It is therefore no mere technicality to point out that the 
American judges do not, as Europeans are apt to say, " control 
the legislature," but simply interpret the law. The word 
" control " is misleading, because it implies that the person or 
body of whom it is used possesses and exerts discretionary per- 
sonal Will. Now the American judges have no will in the 
matter any more than has an English court when it interprets 
an Act of Parliament. The will that prevails is the will of 
the people, expressed in the Constitution which they had en- 
acted. All that the judges have to do is to discover from the 
enactments before them what the will of the people is, and 
apply that will to the facts of a given rase. The more general 
or ambiguous the language which the people have used, so 
much the more difficult is the task of interpretation, so much 
greater the need for ability and integrity in the judges. But 
the task is always the same in its nature. The judges have 
no concern with the motives or the results of an enactment, 
otherwise than as these may throw light on the sense in which 



chap, xxiii THE COURTS AND THE CONSTITUTION 253 

the enacting authority intended it. It would be a breach of 
duty for them to express, I might almost say a breach of duty 
to entertain, an opinion on its policy except so far as its policy 
explains its meaning. They may think a statute excellent in 
purpose and working, but if they cannot find in the Constitu- 
tion a power for Congress to pass it, they must brush it aside 
as invalid. They may deem another statute pernicious, but if 
it is within the powers of Congress, they must enforce it. To 
construe the law, that is, to elucidate the will of the people as 
supreme lawgiver, is the beginning and end of their duty. 
And if it be suggested that they may overstep their duty, 
and may, seeking to make themselves not the exponents but 
I the masters of the Constitution, twist and pervert it to suit 
their own political views, the answer is that such an exercise 
of judicial will would rouse the distrust and displeasure of the 
nation, and might, if persisted in, provoke resistance to the law 
as laid down by the court, possibly an onslaught upon the 
court itself. 

To insist upon the fact that the judiciary of the United States 
are not the masters of the Constitution but merely its inter- 
preters is not to minimize the importance of their functions, but 
to indicate their true nature. The importance of those func- 
tions can hardly be exaggerated. It arises from two facts. 
One is that as the Constitution cannot easily be changed, a 
bad decision on its meaning, i.e. a decision which the general 
opinion of the profession condemns, may go uncorrected. In 
England, if a court has construed a statute in a way unintended 
or unexpected, Parliament sets things right next session by 
amending the statute, and so prevents future decisions to the 
same effect. But American history shows only one instance in 
which an unwelcome decision on the meaning of the Constitu- 
tion has been thus dealt with, viz. the decision, that a State 
could be sued by a private citizen, 1 which led to the eleventh 
amendment, whereby it was declared that the Constitution 
should not cover a case which the court had held it did cover. 

The other fact which makes the function of an American 
judge so momentous is the brevity, the laudable brevity, of the 

1 See the last preceding chapter. The doctrine of the Dred Scott case (of 
which more anon) was set aside by the fourteenth amendment, but that amend- 
ment was intended to effect much more than merely to correct the court. 



254 THE NATIONAL GOVERNMENT part i 

Constitution. The words of that instrument are general, lay- 
ing clown a few large principles. The cases which will arise 
as to the construction of these general words cannot be foreseen 
till they arise. When they do arise the generality of the words 
leaves open to the interpreting judges a far wider field than is 
afforded by ordinary statutes which, since they treat of one 
particular subject, contain enactments comparatively minute 
and precise. Hence, although the duty of a court is only to 
interpret, the considerations affecting interpretation are more 
numerous than in the case of ordinary statutes, more delicate, 
larger in their reach and scope. They sometimes need the 
exercise not merely of legal acumen and judicial fairness, but 
of a comprehension of the nature and methods of government 
which one does not demand from the European judge who walks 
in the narrow path traced for him by ordinary statutes. It is 
therefore hardly an exaggeration to say that the American 
Constitution as it now stands, with the mass of fringing deci- 
sions which explain it, is a far more complete and finished in- 
strument than it was when it came fire-new from the hands of 
the Convention. It is not merely their work but the work of 
the judges, and most of all of one man, the great Chief-Justice 
Marshall. 

The march of democracy in England has disposed English 
writers and politicians of the very school which thirty or 
twenty years ago pointed to America as a terrible example, 
now to discover that her republic possesses elements of stability 
wanting in the monarchy of the mother country. They lament 
that England should have no supreme court. Some have even 
suggested that England should create one. They do not seem 
to perceive that the dangers they discern arise not from the 
want of a court but from the omnipotence of the British 
Parliament. They ask for a court to guard the British Con- 
stitution, forgetting that Britain lias no constitution, in the 
American sens* 1 , and never had one, except for a short spare 
under Oliver Cromwell. The strongest court that might be 
set up in England could effect nothing so long as Parliament 
retains its power to change every part oi' the law. including 
all the rules and doctrines that are called constitutional. If 
Parliament were to lose thai power tlierc would be no need to 
create a supreme court, because the existing judges of the land 



chap, xxm THE COURTS AND THE CONSTITUTION 255 

would necessarily discharge the very functions which Ameri- 
can judges now discharge. If Parliament were to be split up 
into four parliaments for England, Scotland, Ireland, and 
Wales, and a new Federal Assembly were to be established 
with limited legislative powers, powers defined by an instru- 
ment which neither the Federal Assembly nor any of the four 
parliaments could alter, questions woidd forthwith arise as to 
the compatibility both of acts passed by the Assembly with 
the provisions of the instrument, and of acts passed by any 
of the four parliaments with those passed by the Assembly. 
These questions would come before the courts and be deter- 
mined by them like any other question of law. The same 
thing would happen if Britain were to enter into a federal 
pact with her colonies, creating an imperial Council, and 
giving it powers which, though restricted by the pact to 
certain purposes, transcended those of the British Parliament. 
The interpretation of the pact would belong to the courts, and 
both Parliament and the supposed Council would be bound by 
that interpretation. 1 If a new supreme court were created by 
Britain, it would be created not because there do not already 
exist courts capable of entertaining all the questions that 
could arise, but because the parties to the new constitution 
enacted for the United Kingdom, or the British Empire (as 
the case might be), might insist that a tribunal composed of 
persons chosen by some Federal authority would be more 
certainly impartial. The preliminary therefore to any such 
"judicial safeguard" as has been suggested is the extinction 
of the present British Parliament and the erection of a wholly 
different body or bodies in its room. 

/~ These observations may suffice to show that there is nothing 

| strange or mysterious about the relation of the Federal courts 

Ito the Constitution. The plan which the Convention of 1787 

/adopted is simple, useful, and conformable to general legal 

J principles. It is, in the original sense of the word, an elegant 

I plan. But it is not novel, as was indeed observed by Hamilton 

I in the Federalist. It was at work in the States before the 

Convention of 1787 met. It was at work in the thirteen 

^colonies before they revolted from England. It is an applica- 

1 Assuming of course that the power of altering the pact was reserved to 
some authority superior to either the Council or Parliament. 



256 THE NATIONAL GOVERNMENT part i 

tioii of old and familiar legal doctrines. Such novelty as there 
is belongs to the scheme of a Supreme or Eigid constitution, 
reserving the ultimate power to the people, and limiting in 
the same measure the power of a legislature. 1 

It is nevertheless true that there is no part of the American 
system which reflects more credit on its authors or has worked 
better in practice. It has had the adv *e of relegating 
questions not only intricate and delicate, but peculiarly liable 
to excite political passions, to the cool, dry atmosphere of 
judicial determination. The relations of the central Federal 
power to the States, and the amount of authority which Con- 
gress and the President are respectively entitled to exercise, 
have been the most permanently grave questions in American 
history, with which nearly every other political problem has 
become entangled. If they had been left to be settled by 
Congress, itself an interested party, or by any dealings between 
Congress and the State legislatures, the dangers of a conflict 
would have been extreme, and instead of one civil war there 
might have been several. But the universal respect felt for 
the Constitution, a respect which grows the longer it stands, 
has disposed men to defer to any decision which seems honestly 
and logically to unfold the meaning of its terms. In obeying 
such a decision they are obeying, not the judges, but the people 
who enacted the Constitution. To have foreseen that the power 
of interpreting the Federal Constitution and statutes, and of 
determining whether or no State constitutions and statutes 
transgress Federal provisions, would be sufficient to prevent 
struggles between the National government and the State gov- 
ernments, required great insight and great faith in the sound- 
ness and power of a principle. While the Constitution was 

1 So Mr. Wilson observed (speaking of the State constitutions) in the Penn- 
sylvania Convention of 1788: " Perhaps some politician who lias not considered 
with sufficient accuracy our political systems would observe that in our gov- 
ernments the supreme power was vested in the constitutions. This opinion 
approaches the truth, but does not reach it. The truth is that in our govern- 
ments the supreme, absolute, and uncontrollable power a mains in the people. 
As our constitutions are superior to our legislatures, so the people are superior 
to our constitutions." — Elliot's Debates, ii. 4: , >L > . 

Mr. M'Kcan, speaking in the same convention, quoted Locke's Civil Gov- 
ernment (c. 2, § 140, and c. 13, § 152) as an authority for the proposition that 
the powers of Congress could be no greater than the positive grant might 
convey. 

As to Rigid Constitutions, sec Chapter XXX I. post. 



chap, xxiii THE COURTS AND THE CONSTITUTION 257 

being framed the suggestion was made, and for a time seemed 
likely to be adopted, that a veto on the acts of State legislatures 
should be conferred upon the Federal Congress. Discussion 
revealed the objections to such a plan. Its introduction would 
have offended the sentiment of the States, always jealous of 
their autonomy • its exercise would have provoked collisions 
with them. Tiio ^'allowance of a State statute, even if it did 
really offend against the Federal Constitution, would have 
seemed a political move, to be resented by a political counter- 
move. And the veto would often have been pronounced before 
it could have been ascertained exactly how the State statute 
would work, sometimes, perhaps, pronounced in cases where 
the statute was neither pernicious in itself nor opposed to the 
Federal Constitution. But by the action- of the courts the self- 
love of the States is not wounded, and the decision annulling 
their laws is nothing but a tribute to the superior authority of 
that supreme enactment to which they were themselves parties, 
and which they may themselves desire to see enforced against 
another State on some not remote occasion. However, the 
idea of a veto by Congress was most effectively demolished in 
the Convention by Eoger Sherman, who acutely remarked that 
a veto would seem to recognize as valid the State statute ob- 
jected to, whereas if inconsistent with the Constitution it was 
/really invalid already and needed no veto. 

By leaving constitutional questions to be settled by the 
) courts of law another advantage was incidentally secured. 
t The court does not go to meet the question ; it waits for the 
\ question to come to it. When the court acts it acts at the 
instance of a party. Sometimes the plaintiff or the defendant 
may be the National government or a State government, but 
far more frequently both are private -'per sons, seeking to en- 
force or defend their private rights. For instance, in the 
famous case 1 which established the doctrine that a statute 
passed by a State repealing a grant of land to an individual 
made on certain terms by a previous statute is a law " impair- 
ing the obligation of a contract," and therefore invalid, under 
Art. i. § 10 of the Federal Constitution; the question came 
before the court on an action by one Fletcher against one Peck 
on a covenant contained in a deed made bv the latter : and to 






VOL. I 



J 
1 Fletcher v. Peck, 6 Cranch, p. 87. 



258 THE NATIONAL GOVERNMENT pakt i 

do justice between plaintiff and defendant it was necessary to 
examine the validity of a statute passed by the legislature of 
Georgia. This method has the merit of not hurrying a ques- 
tion on, but leaving it to arise of itself. Full legal argument 
on both sides is secured by the private interests which the 
parties have in setting forth their contentions ; and the deci- 
sion when pronounced, since it appears to be, as in fact it is, 
primarily a decision upon private rights, obtains that respect 
and moral support which a private plaintiff or defendant estab- 
lishing his legal right is entitled to from law-abiding citizens. 
A State might be provoked to resistance if it saw, as soon as 
it had passed a statute, the Federal government inviting the 
Supreme court to declare that statute invalid. But when the 
Federal authority stands silent, and a year after in an ordinary 
action between Smith and Jones the court decides in favour of 
Jones, who argued that the statute on which the plaintiff relied 
was invalid because it transgressed some provision of the Con- 
stitution, everybody feels that Jones was justified in so argu- 
ing, and that since judgment was given in his favour he must 
be allowed to retain the money which the court has found to 
be his, and the statute which violated his private right must 
fall to the ground. 

This feature has particularly excited the admiration of 
Continental critics. To an Englishman it seems perfectly 
natural, because it is exactly in this way that much of English 
constitutional law has been built up, The English courts had 
indeed no rigid documentary constitution by which to test the 
ordinances or the executive acts of the Crown, and their deci- 
sions on constitutional points have often been pronounced in 
proceedings to which the Crown or its ministers were parties. 
But they have repeatedly established principles of the greatest 
moment by judgments delivered in cases where a private 
interest was involved, grounding themselves either on a statute 
which they interpreted or on some earlier decision. 1 Lord 
Mansfield's famous declaration that slavery was legally impos- 
sible in England was pronounced in such a private case. Stock- 
dale v. Hansard, in which the law regarding the publishing of 

1 The independence of the English judges (since the Revolution) mm! of tlie 
American Federal judges has of course largely contributed to make them trusted, 

and to make them act worthily of the trust reposed in them. 



chap, xxm THE COURTS AND THE CONSTITUTION 259 

debates in Parliament was settled, was an action by a private 
person againt printers. ( The American method of settling con- 
stitutional questions, like all other legal questions, in actions 
between private parties, is therefore no new device, but a part 
of that priceless heritage of the English Common Law which 
the colonists carried with them across the sea, and which they 
have preserved and developed ^11 a manner worthy of its own 
free spirit and lofty traditions./ 

Those err who suppose that the -functions above described as 
pertaining to the American courts are peculiar and essential 
to a Federal government. These functions are not peculiar to 
a federation, because the distinction of fundamental laws and 
inferior laws may exist equally well in a unified government, 
did exist in each of the thirteen colonies up till 1776, did 
exist in each of the thirteen States from 1776 till 1789, does 
exist in every one of the forty-four States now. Nor are they 
essential, because a federation may well be imagined in which 
the central or national legislature should be theoretically sover- 
eign in the same sense and to the same full extent as is the 
British Parliament. 1 The component parts of any confederacy 
will no doubt be generally disposed to place their respective 
State rights under the protection of a compact unchangeable by 
the national legislature. But they need not do so, for they may 
rely on the command which as electors they have over that 
legislature, and may prefer the greater energy which a sover- 
eign legislature promises to the greater security for State rights 
which a limited legislature implies/ In the particular case of 
America it is abundantly clear that if there had been in 1787 
no States jealous of their powers, but an united nation creating 
for itself an improved frame of government, the organs of that 
government would have been limited by a fundamental law just 
as they have in fact been, because the nation, distrusting the 
agents it was creating, was resolved to fetter them by reserv- 
ing to itself the ultimate and over-riding sovereignty. \ 

The case of Switzerland shows that the American plan is not 
the only one possible to a federation. The Swiss Federal Court, 

1 It would appear that in the Achaean League the Assembly (which voted by- 
cities) was sovereign, and could by its vote vary the terms of the federal ar- 
rangements between the cities forming the federation ; although the scantiness 
of our data and what may be called the want of legal-mindedness among the 
Greeks make this and similar questions not easy of determination. 



260 THE NATIONAL GOVERNMENT part i 

while instituted in imitation of the American, is not the only 
authority competent to determine whether a Cantonal law is 
void because inconsistent with the Federal Constitution, for in 
some cases recourse must be had not to the Court but to the 
Federal Council, which is a sort of executive cabinet of the Con- 
federation. And the Federal Court is bound to enforce every 
law passed by the Federal legislature, even if it violate the 
Constitution. In other words, the Swiss Constitution has 
reserved some points of Cantonal law for an authority not 
judicial but political, and has made the Federal legislature the 
sole judge of its own powers, the authorized interpreter of the 
Constitution, and an interpreter not likely to proceed on purely 
legal grounds. 1 To an English or American lawyer the Swiss 
copy seems neither so consistent with sound theory nor so safe 
in practice as the American original. But the statesmen of 
Switzerland felt that a method fit for America might be ill- 
fitted for their own country, where the latitude given to the 
executive is greater ; and the Swiss habit of constantly recur- 
ring to popular vote makes it less necessary to restrain the 
legislature by a permanently enacted instrument. The politi- 
cal traditions of the European continent differ widely from 
those of England and America ; and the Federal Judicature is 
not the only Anglo-American institution which might fail to 
thrive anywhere but in its native soil. 

1 See upon this fascinating subject, the provisions of the Swiss Federal Con- 
stitution of 1874, arts. 102, 110, and 114; also Dubs, Das oqffentliche Rccht dcr 
Schweizerischen Eidgenossenschaft, and a valuable pamphlet by M. Ch. Sol- 
dan, entitled Du recours de Droit Public an Tribunal Federal; Bale. 1886. 
Dr. Dubs was himself the author of the plan whereby the Federal legislature 
is made the arbiter of its own constitutional powers. 



CHAPTER XXIV 

THE WORKING OF THE COURTS 

Those readers who have followed thus far the account given 
of the Federal courts have probably asked themselves how 
judicial authorities can sustain the functions which America 
requires them to discharge. It is plain that judges, when 
sucked into the vortex of politics, must lose dignity, imparti- 
ality, and influence. But how can judges keep out of politics, 
when political issues raising party passions come before them ? 
Must not constitutional questions, questions as to the rights 
under the Constitution of the Federal government against the 
States, and of the branches of the Federal government against 
one another, frequently involve momentous political issues ? 
In the troublous times during which the outlines of the English 
Constitution were settled, controversy often raged round the 
courts, because the decision of contested points lay in their 
hands. When Charles I. could not induce Parliament to admit 
the right of levying contributions which he claimed, and Par- 
liament relied on the power of the purse as its defence against 
Charles I., the question whether ship-money could lawfully be 
levied was vital to both parties, and the judges held the balance 
of power in their hands. At that moment the law could not 
be changed, because the Houses and the king stood opposed : 
hence everything turned on the interpretation of the existing 
law. In America the Constitution is at all times very hard to 
change : much more then must political issues turn on its 
interpretation. And if this be so, must not the interpreting 
court be led to assume a control over the executive and legis- 
lative branches of the government, since it has the power of 
declaring their acts illegal ? 

There is ground for these criticisms. The evil they point to 
has occurred and may recur. But it occurs very rarely, and 

261 



262 THE NATIONAL GOVERNMENT part i 

may be averted by the same prudence which the courts have 
hitherto generally shown. The causes which have enabled the 
Federal courts to avoid it, and to maintain their dignity and 
influence almost unshaken, are the following : — 

I. The Supreme court — I speak of the Supreme court 
because its conduct has governed that of inferior Federal courts 
— has steadily refused to interfere in purely political ques- 
tions. Whenever it finds any discretion given to the President, 
any executive duty imposed on him, it considers the manner in 
which he exercises his discretion and discharges the duty to be 
beyond its province. Whenever the Constitution has conferred 
a power of legislating upon Congress, the court declines to 
inquire whether the use of the power was in the case of a par- 
ticular statute passed by Congress either necessary or desir- 
able, or whether it was exerted in a prudent manner, for it 
holds all such matters to be within the exclusive province of 
Congress. 

" In measures exclusively of a political, legislative, or executive char- 
acter, it is plain that as the supreme authority as to these questions 
belongs to the legislative and executive departments, they cannot be re- 
examined elsewhere. Thus Congress, having the power to declare war, 
to levy taxes, to appropriate money, to regulate intercourse and com- 
merce with foreign nations, their mode of executing these powers can 
never become the subject of re -examination in any other tribunal. So 
the power to make treaties being confided to the President and Senate, 
when a treaty is properly ratified, it becomes the law of the land, and no 
other tribunal can gainsay its stipulations. Yet cases may readily be 
imagined in which a tax may be laid, or a treaty made upon motives and 
grounds wholly beside the intention of the Constitution. The remedy, 
however, in such cases is solely by an appeal to the people at the elec- 
tions, or by the salutary power of amendment provided by the Constitu- 
tion itself." J 

Adherence to this principle has enabled the court to avoid an 
immixture in political strife which must have destroyed its 
credit, has deterred it from entering the political arena, where 
it would have been weak, and enabled it to act without fear in 
the sphere of pure law, where it is strong. Occasionally, how- 
ever, as I shall explain presently, the court has come into col- 
lision with the executive. Occasionally it has been required 
to give decisions which have worked with tremendous force on 
1 Story, Commentaries on the Constitution, § ;>74. 



cuxv. xxiv THE WORKING OF THE COURTS 263 

politics. The most famous of these was the Dred Scott case, 1 
in which the Supreme court, on an action by a negro for assault 
and battery against the person claiming to be his master, de- 
clared that a slave taken temporarily to a free State and to a 
Territory in which Congress had forbidden slavery, and after- 
wards returning into a slave State and resuming residence 
there, was not a citizen capable of suing in the Federal courts 
if by the law of the slave State he was still a slave. This was 
the point which actually called for decision ; but the majority 
of the court, for there was a dissentient minority, went further, 
and delivered a variety of dicta on various other points touch- 
ing the legal status of negroes and the constitutional view of 
slavery. This judgment, since the language used in it seemed 
to cut off the hope of a settlement by the authority of Congress 
of the then (1857) pending disputes over slavery and its exten- 
sion, did much to precipitate the Civil War. 

Some questions, and among them many which involve politi- 
cal issues, can never come before the Federal courts, because 
they are not such as are rai sable in an action between parties. 
Of those which might be raised, some never happen to arise, 
while others do not present themselves in an action till some 
time after the statute has been passed or act done on which 
the court is called to pronounce. By that time it may happen 
that the warmth of feeling which expressed itself during de- 
bate in Congress or in the country has passed away, while the 
judgment of the nation at large has been practically pro- 
nounced upon the issue. 

II. Looking upon itself as a pure organ of the law, com- 
missioned to do justice between man and man, but to do 
nothing more, the Supreme court has steadily refused to decide 
abstract questions, or to give opinions in advance by way of 
advice to the executive. When, in 1793, President Washing- 
ton requested its opinion on the construction of the treaty of 
1778 with France, the judges declined to comply. 

This restriction of the court's duty to the determination of 
concrete cases arising in suits has excited so much admiration 

1 Scott v. Sandford, 19 How. 393. There is an immense literature about 
this case, the legal points involved in which are too numerous and technical to 
he here stated. It is noticeable that the sting of the decision lay rather in the 
obiter dicta than in the determination of the main question involved. 



264 THE NATIONAL GOVERNMENT part i 

from Tocqueville and other writers, that the corresponding 
disadvantages mnst be stated. They are these : — 

To settle at once and for ever a disputed point of constitu- 
tional law would often be a gain both to private citizens and 
to the organs of the government. Under the present system 
there is no certainty when, if ever, such a point will be settled. 
Nobody may care to incur the trouble and expense of taking 
it before the court. A suit which raises it may be compro- 
mised or dropped. 

When such a question, after perhaps the lapse of years, 
comes before the Supreme court and is determined, the deter- 
mination may be different from what the legal profession has 
expected, may alter that which has been believed to be the 
law, may shake or overthrow private interests based upon 
views now declared to be erroneous. 1 These are, no doubt, 
drawbacks incident to every system in which the decisions of 
courts play a great part. There are many points in the law 
of England which are uncertain even now, because they have 
never come before a court of high authority, or, having been 
decided in different ways by co-ordinate courts, have not been 
carried to the final court of appeal. But in England, if the 
inconvenience is great, it can be removed by an Act of Parlia- 
ment, and it can hardly be so great as it may be in America, 
where, since the doubtful point may be the true construction 
of the fundamental law of the Union, the President and Con- 
gress may be left in uncertainty as to how they shall shape 
their course. With the best wish in the world to act con- 
formably to the Constitution, these authorities have no means 
of ascertaining before they act what, in the view of its author- 
ized interpreters, the true meaning of the Constitution is. 
Moved by this consideration, seven States of the Union have by 
their Constitutions empowered the governor or legislature to 
require the written opinions of the judges of the highest State 
court on points submitted to them. 2 But the President of the 

1 The Dred Scott decision in 1857 declared the Missouri compromise, carried 
out by Act of Congress in 1820, to have been beyond the powers of Congress, 
which, to be sure, had virtually repealed it a year or two before by the Kan- 
sas-Nebraska legislation. Decisions have been given on the fourteenth and 
fifteenth amendments upsetting or qualifying congressional legislation passed 
years before. 

2 See Chapter XXXVII. post. There exists a similar provision in the stat- 



chap, xxiv THE WOKKING OF THE COURTS 265 

United States can only consult his attorney-general, 1 and the 
Houses of Congress have no legal adviser, though to be sure 
they are apt to receive a profusion of advice from their own 
legal members. 

III. Other causes which have sustained the authority of 
the court by saving it from immersion in the turbid pool 
of politics, are the strength of professional feeling among 
American lawyers, the relation of the bench to the bar, 
the power of the legal profession in the country. The keen 
interest which the profession takes in the law secures a 
large number of acute and competent critics of the inter- 
pretation put upon the law by the judges. Such men form 
a tribunal to whose opinion the judges are sensitive, and 
all the more sensitive because the judges, like those of Eng- 
land, but unlike those of continental Europe, have been them- 
selves practising counsel. The better lawyers of the United 
States do not sink their professional sentiment and opinion 
in their party sympathies. They know good law even when 
it goes against themselves, and privately condemn as bad 
law a decision none the less because it benefits their party or 
their client. The Federal judge who has recently quitted the 
ranks of the bar remains in sympathy with it, respects its 
views, desires its approbation. 'Both his inbred professional 
habits, and his respect for those traditions which the bar 
prizes, restrain him from prostituting his office to party 
objects. Though he has usually been a politician, and owes 
his promotion to his party, his political trappings drop off 
him when he mounts the Supreme bench. He has now 
nothing to fear from party displeasure, because he is irre- 
movable (except by impeachment), nothing to hope from 
party favour, because he is at the top of the tree and can 
climb no higher. Virtue has all the external conditions in 
her favour. It is true that virtue is compatible with the 

ute of 1875, creating the Supreme Court of Canada, and the Government 
of Ireland Bill, introduced into the House of Commons in 1886, but defeated 
there, contained (§ 25) a proviso enabling the Lord-Lieutenant of Ireland or a 
Secretary of State to refer a question for opinion to the judicial committee of 
the Privy Council. 

1 The President sometimes, for the benefit of the public, publishes the writ- 
ten opinion of the attorney-general on an important and doubtful point ; but 
such an opinion has no more authority than what it may derive from the pro- 
fessional eminence of that officer. 



266 THE NATIONAL GOVERNMENT part i 

desire to extend the power and jurisdiction of the court. But 
even allowing that this motive may occasionally sway the 
judicial mind, the circumstances which surround the action 
of a tribunal debarred from initiative, capable of dealing 
only with concrete cases that come before it at irregular 
intervals, unable to appropriate any of the sweets of power 
other than power itself, make a course of systematic usur- 
pation more difficult and less seductive than it would be to 
a legislative assembly or an executive council. As the re- 
spect of the bench for the bar tends to keep the judges in 
the straight path, so the respect and regard of the bar for 
the bench, a regard grounded on the sense of professional 
brotherhood, ensure the moral influence of the court in the 
country. The bar has usually been very powerful in America, 
not only as being the only class of educated men who are 
at once men of affairs and skilled speakers, but also because 
there has been no nobility or territorial aristocracy to over- 
shadow it. 1 Politics have been largely in its hands, and 
must remain so as long as political questions continue to 
be involved with the interpretation of constitutions. For 
the first sixty or seventy years of the Republic the leading 
statesmen were lawyers, and the lawyers as a whole moulded 
and led the public opinion of the country. Now to the 
better class of American lawyers law was a sacred science, 
and the highest court which dispensed it a sort of Mecca, 
towards which the faces of the faithful turned. Hence every 
constitutional case before the Supreme court was closely 
watched, the reasonings of the court studied, and its decisions 
appreciated as law apart from their bearing on political doc- 
trines. I have heard elderly men describe the interest with 
which, in their youth, a famous advocate who had gone to 
Washington to argue a case before the Supreme court was 
welcomed by the bar of his own city on his return, how 
the rising men crowded round him to hear what he had 
to tell of the combat in that arena where the best intellects 
of the nation strove, how the respect which he never failed to 
express for the ability and impartiality of the court com- 
municated itself to them, how admiration bred acquiescence, 

1 See Chapter XCVII. post. Professional interest iu law seems to have been 
stronger in the last generation than it is now. 



chap, xxiv THE WORKING OF THE COURTS 2G7 

and the whole profession accepted expositions of the law 
unexpected by many, perhaps unwelcome to most. When it 
was felt that the judges had honestly sought to expound 
the Constitution, and when the cogency of their reasonings 
was admitted, resentment, if any there had been, passed 
away, and the support which the bar gave to the court en- 
sured the obedience of the people. 

That this factor in the maintenance of judicial influence 
proved so potent was largely due to the personal eminence of 
the judges. One must not call that a result of fortune which 
was the result of the wisdom of successive Presidents in choos- 
ing capable men to sit on the supreme Federal bench. Yet one 
man was so singularly fitted for the office of chief justice, and 
rendered such incomparable services in it, that the Americans 
have been wont to regard him as a special gift of favouring 
Providence. This was John Marshall, who presided over the 
Supreme court from 1801 till his death in 1835 at the age of 
eighty, and whose fame overtops that of all other American 
judges more than Papinian overtops the jurists of Rome or 
Lord Mansfield the jurists of England. No other man did half 
so much either to develop the Constitution by expounding it, 
or to secure for the judiciary its rightful place in the govern- 
ment as the living voice of the Constitution. No one vindicated 
more strenuously the duty of the court to establish the author- 
ity of the fundamental law of the land, no one abstained more 
scrupulously from trespassing on the field of executive admin- 
istration or political controversy. The admiration and respect 
which he and his colleagues won for the court remain its bul- 
wark : the traditions which were formed under him and them 
have continued in general to guide the action and elevate the 
sentiments of their successors. 

Nevertheless, the court has not always had smooth seas to 
navigate. It has more than once been shaken by blasts of 
unpopularity. It has not infrequently found itself in conflict 
with other authorities. 

The first attacks arose out of its decision that it had juris- 
diction to entertain suits by private persons against a State. 1 
This point was set at rest by the eleventh amendment ; but the 
States then first learnt to fear the Supreme court as an antag- 

1 Chisholm v. Georgia, see above, p. 235. 



268 THE NATIONAL GOVERNMENT part i 

onist. In 1801, in an application requiring the secretary of 
state to deliver a commission, it declared itself to have the 
power to compel an executive officer to fulfil a ministerial duty 
affecting the rights of individuals. 1 President Jefferson pro- 
tested angrily against this claim, but it has been repeatedly re- 
asserted, and is now undoubted law. It was in this same case 
that the court first explicitly asserted its duty to treat as in- 
valid an Act of Congress inconsistent with the Constitution. 
In 1805 its independence was threatened by the impeachment 
of Justice Chase, the aim of the Republican (Democratic) 
party then dominant in Congress being to set a precedent for 
ejecting, by means of impeachment, judges (and especially 
Chief-Justice Marshall), whose attitude on constitutional ques- 
tions they condemned. The acquittal of Chase dispelled this 
danger: nor could John Randolph, who then led the House, 
secure the acceptance of an amendment to the Constitution 
which he thereupon proposed for enabling the President to re- 
move Federal judges on an address of both Houses of Congress. 
In 1806 the court for the first time pronounced a State statute 
void; in 1816 and 1821 it rendered decisions establishing its 
authority as a supreme court of appeal from State courts on 
" federal questions," and unfolding the full meaning of the 
doctrine that the Constitution and Acts of Congress duly 
made in pursuance of the Constitution are the fundamental 
and supreme law of the land. This was a doctrine which had 
not been adequately apprehended even by lawyers, and its 
development, legitimate as we now deem it, roused opposition. 
The ultra-Democrats who came into power under President 
Jackson in 1829, were specially hostile to a construction of the 
Constitution which seemed to trench upon State rights, 2 and 
when in 1832 the Supreme court ordered the State of Georgia 
to release persons imprisoned under a Georgian statute which 

1 Marbury v. Madison, 1 Cranch, 137. In this case the court refused to issue 
the mandamus asked for, hut upon the ground that the statute of Congress 
giving to the Supreme court original jurisdiction to issue a mandamus was 
inconsistent with the Constitution. See also Kendal v. United states, 12 
Peters, 616; United stales v. Schurx, 102 U. S. 378. 

2 Martin Van liuren (President 1837-41) expressed the feelings of the hulk 
of his party when he complained bitterly of the encroachments of the Supreme 
court, and declared thai it would never have been created had the people fore- 
seen the powers it would acquire. 



chap, xxiv THE WORKING OF THE COURTS 269 

the court declared to be invalid, 1 Jackson, whose duty it was 
to enforce the decision by the executive arm, remarked, "John 
Marshall has pronounced his judgment : let him enforce it if 
he can." The successful resistance of Georgia in the Cherokee 
dispute 2 gave a blow to the authority of the court, and marked 
the beginning of a new period in its history, during which, in 
the hands of judges mostly appointed by the Democratic party, 
it made no further advance in power. 

In 1857 the Dred Scott judgment, pronounced by a majority 
of the judges, excited the strongest outbreak of displeasure yet 
witnessed. The Eepublican party, then rising into strength, 
denounced this decision in the resolutions of the convention 
which nominated Abraham Lincoln in 1860, and its doctrine 
as to citizenship was expressly negatived in the fourteenth 
constitutional amendment adopted after the War of Secession. 

It was feared that the political leanings of the judges who 
formed the court at the outbreak of the war would induce them 
to throw legal difficulties in the prosecution of the measures 
needed for re-establishing the authority of the Union. These 
fears proved ungrounded, although some contests arose as to 
the right of officers in the Federal army to disregard writs of 
habeas corpus issued by the court. 3 In 1868, having then be- 
come Republican in its sympathies by the appointment of new 
members as the older judges disappeared, it tended to sustain 
the congressional plan of reconstruction which President 
Johnson desired to defeat, and in subsequent cases it has 
given effect to most, though not to all, of the statutes passed 
by Congress under the three amendments which abolished 
slavery and secured the rights of the negroes. In 1866 it 
refused to entertain proceedings instituted for the purpose of 
forbidding the President to execute the Reconstruction Acts. 

Two of its later acts are thought by some to have affected 

1 This was only one act in the long struggle of the Cherokee Indians against 
the oppressive conduct of Georgia — conduct wbich the court emphatically 
condemned, though it proved powerless to help the unhappy Cherokees. 

2 The matter did not come to an absolute conflict, because before the time 
arrived for the court to direct the United States marshal of the district of 
Georgia to summon the posse comitatus and the President to render assistance 
in liberating the prisoners, the prisoners submitted to the State authorities, 
and were thereupon released. They probably believed that the imperious 
Jackson would persist in his hostility to the Supreme court. 

3 See Ex parte Milligan, 4 Wall. 129. 



270 THE NATIONAL GOVERNMENT part i 

public confidence. One of these was the reversal, first in 1871, 
and again, upon broader but not inconsistent grounds, in 1884, 
of the decision, given in 1870, which declared invalid the Act 
of Congress making government paper a legal tender for debts. 
The original decision of 1870 was rendered by a majority of 
five to three. The court was afterwards changed by the cre- 
ation of an additional judgeship, 1 and by the appointment of a 
new member to fill a vacancy which occurred after the settle- 
ment, though before the delivery, of the first decision. Then 
the question was brought up again in a new case between 
different parties, and decided in the opposite sense (i.e. in 
favour of the power of Congress to pass legal tender Acts) by 
a majority of five to four. Finally, in 1884, another suit hav- 
ing brought up a point practically the same, though under a 
later statute passed by Congress, the court determined with 
only one dissentient voice that the power existed. 2 This last 
decision excited some criticism, especially among the more 
conservative lawyers, because it seemed to remove restrictions 
hitherto supposed to exist on the authority of Congress, rec- 
ognizing the right to establish a forced paper currency as an 
attribute of the sovereignty of the national government. But 
be the decision right or wrong, a point on which high author- 
ities are still divided, the reversal by the highest court in the 
land of its own previous decision may have tended to unsettle 
men's reliance on the stability of the law ; while the manner 
of the earlier reversal, following as it did on the appointment 
of two new justices, both known to be in favour of the view 
which the majority of the court had just disapproved, disclosed 
a weak point in the constitution of the tribunal which may 
some day prove fatal to its usefulness. 

The other misfortune was the interposition of the court in 
the presidential electoral count dispute of 187 7. ;! The five 
justices of the Supreme court who were included in the elec- 
toral commission then appointed voted on party lines no less 
steadily than did the senators and representatives who sat on 

1 Appointed, however, under an Act passed in April 1869. 

a The earlier decision in favour of tin 1 power deduced it from war powers. 
the later from the general sovereignty of the national government. See Hep- 
burn v. Oriswold, 8 Wall. 603; Legal Tender Cases, V2 Wall. 457: JuiUiard 
v. Oreenman, 1 10 U. S. 421. 

3 See above, Chapter V. 



chap, xxiv THE WORKING OF THE COURTS 271 

it. A function scarcely judicial, and certainly not contem- 
plated by the Constitution, was then for the first time thrown 
upon the judiciary, and in discharging it the judiciary acted 
exactly like non- judicial persons. 

Notwithstanding this occurrence, which after all was quite 
exceptional, the credit and dignity of the Supreme court stand 
very high. No one of its members has ever been suspected of 
corruption, and comparatively few have allowed their political 
sympathies to disturb their official judgment. Though for 
many years back every President has appointed only men of 
his own party, and frequently leading politicians of his own 
party, 1 the new-made judge has left partisanship behind him, 
while no doubt usually retaining that bias or tendency of his 
mind which party training produces. When a large majority 
of the judges belong to one party, the other party regret the 
fact, and welcome the prospect of putting in some of their own 
men as vacancies occur ; yet the desire for an equal represen- 
tation of both parties is based, not on a fear that suitors will 
suffer from the influence of party spirit, but on the feeling 
that when any new constitutional question arises it is right 
that the tendencies which have characterized the view of the 
Constitution taken by the Democrats on the one hand and the 
Republicans on the other, should each be duly represented. 

Apart from these constitutional questions, the value of the 
Federal courts to the country at large has been inestimable. 
They have done much to meet the evils which an elective and 
ill-paid State judiciary inflicts on some of the newer and a few 
even of the older States. The Federal Circuit and District 
judges, small as are their salaries, are in most States individu- 
ally superior men to the State judges, because the greater 
security of tenure induces abler men to accept the post. 
Being irremovable, they feel themselves independent of par- 
ties and politicians, whom the elected State judge, holding for 

1 1 have heard American lawyers express surprise as well as admiration at 
the occasional departures in England (as notahly in the case of Lord Justice 
Holker, who, having been Attorney-General of one party, was, in respect of 
his eminent merits, appointed Lord Justice of Appeal by the other) from the 
practice of political appointments to judicial office. Such non-political ap- 
pointments are however occasionally made in the several States by the gov- 
ernors, or even (as in the case of Chief-Justice Redfield of Vermont) by the 
legislature. 



272 THE NATIONAL GOVERNMENT part i 

a limited term, may be tempted to conciliate with a view to 
re-election. Plaintiffs, therefore, when they have a choice of 
suing in a State court or a Federal court, frequently prefer the 
latter ; and the litigant who belongs to a foreign country, or 
to a different State from that in which his opponent resides, 
may think his prospects of an unbiassed decision better before 
it than before a State tribunal. Nor is it without interest to 
add that criminal justice is more strictly administered in the 
Federal courts. 

Federal judgeships of the second and third rank (Circuit 
and District) have been hitherto given to the members of the 
President's party, and by an equally well-established usage, to 
persons resident in the State or States where the circuit or 
district court is held. In 1891, however, a Republican Presi- 
dent appointed two Democrats to be judges of the new circuit 
courts of appeals, and placed several Democrats on the (tem- 
porary) Private Land Claims court. Cases of corruption are 
practically unknown, and partisanship has been rare. The 
chief defects have been the inadequacy of the salaries, and 
the insufficiency of the staff in the more populous commercial 
States to grapple with the vast and increasing business which 
flows in upon them. So too, in the Supreme court, arrears 
have so accumulated that it is sometimes three years or more 
from the time when a cause is entered till the day when it 
comes on for hearing. Some have proposed to meet this evil 
by limiting the right of appeal to cases involving a consider- 
able sum of money ; others would divide the Supreme court 
into two divisional courts for the hearing of ordinary suits, 
reserving for the full court points affecting the construction of 
the Constitution. 

One question remains to be put and answered. 

The Supreme court is the living voice of the Constitution ! 
— that is, of the will of the people expressed in the funda- 
mental law they have enacted. It is, therefore, as some one 
has said, the conscience of the people, who have resolved to 
restrain themselves from hasty or unjust action by placing 

1 The Romans called their chief judicial officer the prsetor, " the living voice 
of the civil law"; but as this "civil law" consisted largely of custom, he 

naturally enjoyed a wider discretion in moulding and expanding as well as in 
expounding the law than do the American judges, who have a formally enacted 
constitution to guide and restrain them. 



chap, xxiv THE WORKING OF THE COURTS 



their representatives under the restriction of a permanent 
law. It is the guarantee of the minority, who, when threat- 
ened by the impatient vehemence of a majority, can appeal to 
this permanent law, finding the interpreter and enforcer thereof 
in a court set high above the assaults of faction. 

To discharge these momentous functions, the court must be 
stable even as the Constitution is stable. Its spirit and tone 
must be that of the people at their best moments. It must 
resist transitory impulses, and resist them the more firmly the 
more vehement they are. Entrenched behind impregnable 
ramparts, it must be able to defy at once the open attacks of 
the other departments of the government, and the more dan- 
gerous, because impalpable, seductions of popular sentiment. 

Does it possess, has it displayed, this strength and stabil- 
ity ? 

It has not always followed its own former decisions. This 
is natural in a court whose errors cannot be cured by the 
intervention of the legislature. The English final Court of 
Appeal always follows its previous decisions, though high 
authorities have declared that cases may be imagined in which 
it would refuse to do so. And that court (the House of 
Lords) can afford so to adhere, because, when an old decision 
begins to be condemned, Parliament can forthwith alter the 
law. But as nothing less than a constitutional amendment 
can alter the law contained in the Federal Constitution, the 
Supreme court must choose between the evil of unsettling the 
law by reversing, and the evil of perpetuating bad law by fol- 
lowing, a former decision. It may reasonably, in extreme 
cases, deem the latter evil the greater. 

The Supreme court feels the touch of public opinion. Opin- 
ion is stronger in America than anywhere else in the world, and 
judges are only men. To yield a little may be prudent, for the 
tree that cannot bend to the blast may be broken. There is, 
moreover, this ground at least for presuming public opinion to 
be right, that through it the progressive judgment of the world 
is expressed. Of course, whenever the law is clear, because the 
words of the Constitution are plain or the cases interpreting 
them decisive on the point raised, the court must look solely to 
those words and cases, and cannot permit any other considera- 
tion to affect its mind. But when the terms of the Constitution 

VOL. I T 



274 THE NATIONAL GOVERNMENT part i 

admit of more than one construction, and when previous deci- 
sions have left the true construction so far open that the point 
in question may be deemed new, is a court to be blamed if it 
prefers the construction which the bulk of the people deem 
suited to the needs of the time ? A court is sometimes so 
swayed consciously, more often unconsciously, because the per- 
vasive sympathy of numbers is irresistible even by elderly law- 
yers. A remarkable example is furnished by the decisions (in 
1876) of the Supreme court in the so-called Granger cases, suits 
involving the power of a State to subject railways and other 
corporations or persons exercising what are called " public 
trades " to restrictive legislation without making pecuniary com- 
pensation. 1 I do not presume to doubt the correctness of these 
decisions ; but they evidently represent a different view of the 
sacredness of private rights and of the powers of a legislature 
from that entertained by Chief-Justice Marshall and his contem- 
poraries. They reveal that current of opinion which now runs 
strongly in America against what are called monopolies and 
the powers of incorporated companies. 

The Supreme court has changed its colour, i.e. its temper and 
tendencies, from time to time, according to the political procliv- 
ities of the men who composed it. It changes very slowly, 
because the vacancies in a small body happen rarely, and its com- 
position therefore often represents the predominance of a past 
and not of the presently ruling party. From 1789 down till the 
death of Chief-Justice Marshall in 1835 its tendency was to the 
extension of the powers of the Federal government, and there- 
with of its own jurisdiction, because the ruling spirits in it 
were men who belonged to the old Federalist party, though that 
party fell in 1800, and disappeared in 1814. From 1835 till 
the War of Secession its sympathies were with the doctrines of 
the Democratic party. Without actually abandoning the posi- 
tions of the previous period, the court, during these years when 
Chief-Justice Taney presided over it, leant against any further 
extension of Federal power or of its own jurisdiction. During 

1 See Munn v. Illinois, and the following cases in 94 U.S. Rep. 193 (with which 
compare C. M. & St. P. /?. R. Co. v. Minn., 134 U . S. 418 ; and Budd v. N. Y., 12 S. C. 
Reporter, 648). This was one of those cases in which the court felt hound to 
regard not only the view which it took itself of the meaning of the Constitution 
hut thai which a legislature mighl reasonably take. — See Chapter XXXI V. post. 
A 8 to the non-liability to make compensation where licences for the sale of intox- 
icants are forbidden, see Mugler v. Kansas. 123 U. S. Rep. 623. 



chap, xxiv THE WORKING OF THE COURTS 275 

and after the war, when the ascendency of the Republican party 
had begun to change the composition of the court, a third pe- 
riod opened. Centralizing ideas were again powerful : the vast 
war powers asserted by Congress were in most instances sup- 
ported by judicial decision, the rights of States while main- 
tained (as in the Granger cases) as against private persons or 
bodies, were for a time regarded with less favour whenever they 
seemed to counict with those of the Federal government. In 
none of these three periods can the judges be charged with any 
prostitution of their functions to party purposes. Their action 
flowed naturally from the habits of thought they had formed 
before their accession to the bench, and from the sympathy they 
could not but feel with the doctrines on whose behalf they had 
contended. Even on the proverbially upright and impartial 
bench of England the same tendencies may be discerned. There 
are constitutional questions, and questions touching what may 
be called the policy of the law, which would be decided differ- 
ently by one English judge or by another, not from any con- 
scious wish to favour a party or a class, but because the views 
which a man holds as a citizen cannot fail to colour his judg- 
ment even on legal points. 

The Fathers of the Constitution studied nothing more than to 
secure the complete independence of the judiciary. The Pres- 
ident was not permitted to remove the judges, nor Congress to 
diminish their salaries. One thing only was either forgotten 
or deemed undesirable, because highly inconvenient, to deter- 
mine, — the number of judges in the Supreme court. Here 
was a weak point, a joint in the court's armour through which 
a weapon might some day penetrate. Congress having in 1801, 
pursuant to a power contained in the Constitution, established 
sixteen Circuit courts, President Adams, immediately before he 
quitted ofhce, appointed members of his own party to the jus- 
ticeships thus created. When President Jefferson came in, he 
refused to admit the validity of the appointments ; and the 
newly elected Congress, which was in sympathy with him, abol- 
ished the Circuit courts themselves, since it could find no other 
means of ousting the new justices. This method of attack, 
whose constitutionality has been much doubted, cannot be used 
against the Supreme court, because that tribunal is directly cre- 
ated by the Constitution. But as the Constitution does not pre- 



276 THE NATIONAL GOVEKNMENT part i 

scribe the number of justices, a statute may increase or dimin- 
ish the number as Congress thinks fit. In 1866, when Congress 
was in fierce antagonism to President Johnson, and desired to 
prevent him from appointing any judges, it reduced the num- 
ber, which was then ten, by a statute providing that no vacancy 
should be filled up till the number was reduced to seven. In 
1869, when Johnson had been succeeded by Grant, the number 
was raised to nine, and presently the altered court allowed the 
question of the validity of the Legal Tender Act, just before 
determined, to be reopened. This method is plainly susceptible 
of further and possibly dangerous application. Suppose a Con- 
gress and President bent on doing something which the Supreme 
court deems contrary to the Constitution. They pass a statute. 
A case arises under it. The court on the hearing of the case 
unanimously declares the statute to be null, as being beyond 
the powers of Congress. Congress forthwith passes and the 
President signs another statute more than doubling the num- 
ber of the justices. The President appoints to the new jus- 
ticeships men who are pledged to hold the former statute con- 
stitutional. The Senate confirms his appointments. Another 
case raising the validity of the disputed statute is brought up 
to the court. The new justices outvote the old ones : the stat- 
ute is held valid : the security provided for the protection of 
the Constitution is gone like a morning mist. 

What prevents such assaults on the fundamental law — 
assaults which, however immoral in substance, would be per- 
fectly legal in form ? Not the mechanism of government, for 
all its checks have been evaded. Not the conscience of the 
legislature and the President, for heated combatants seldom 
shrink from justifying the means by the end. Nothing but 
the fear of the people, whose broad good sense and attachment 
to the great principles of the Constitution may generally be 
relied on to condemn such a perversion of its forms. Yet it* 
excitement has risen high over the country, a majority of the 
people may acquiesce ; and then it matters little whether what 
is really a revolution be accomplished by openly violating or 
by merely distorting the forms of law. To the people we 
come sooner or later: it is upon their wisdom and self-restraint 
that the stability of the most cunningly devised scheme of 
government will in the last resort depend. 



CHAPTER XXV 

COMPARISON OF THE AMERICAN AND EUROPEAN SYSTEMS 

The relations to one another of the different branches of the 
government in the United States are so remarkable and so full 
of instruction for other countries, that it seems desirable, even 
at the risk of a little repetition, to show by a comparison with 
the Cabinet or parliamentary system of European countries 
how this complex American machinery actually works. 

The English system on which have been modelled, of course 
with many variations, the systems of France, Belgium, Hol- 
land, Italy, Germany, Hungary (where, however, the English 
scheme has been compounded with an ancient and very inter- 
esting native-born constitution), Sweden, Norway, Denmark, 
Spain, and Portugal, as well as the constitutions of the great 
self-governing English colonies in North America, the Cape, 
and Australasia — this English system places at the head of 
the state a person in whose name all executive acts are done, 
and who is (except in France) irresponsible and irremovable. 1 
His acts are done by the advice and on the responsibility of 
ministers chosen nominally by him, but really by the repre- 
sentatives of the people — usually, but not necessarily, from 
among the members of the legislature. The representatives 
are, therefore, through the agents whom they select, the true 
government of the country. When the representative assembly 
ceases to trust these agents, the latter (unless they dissolve 
the legislature) resign, and a new set are appointed. Thus the 
executive as well as the legislative power really belongs to the 
majority of the representative chamber, though in appointing 
agents, an expedient which its size makes needful, it is forced 

1 In the British colonies the governor is irremovable by the colony, and 
irresponsible to its legislature, though responsible to and removable by the 
home government. 

277 



278 THE NATIONAL GOVERNMENT part i 

to leave in the hands of these agents a measure of discretion 
sufficient to make them appear distinct from it, and sometimes 
to tempt them to acts which their masters disapprove. As the 
legislature is thus in a sense executive, so the executive gov- 
ernment, the council of ministers or cabinet, is in so far legis- 
lative that the initiation of measures rests very largely with 
them, and the carrying of measures through the Chamber de- 
mands their advocacy and counter pressure upon the majority 
of the representatives. They are not merely executive agents 
but also legislative leaders. One may say, indeed, that the 
legislative and executive functions are interwoven as closely 
under this system as under absolute monarchies, such as Impe- 
rial Rome or modern Russia ; and the fact that taxation, while 
effected by means of legislation, is the indispensable engine of 
administration, shows how inseparable are these two appar- 
ently distinct powers. 

Under this system the sovereignty of the legislature may be 
more or less complete. It is most complete in France ; least 
complete in Germany and Prussia, where the power of the 
Emperor and King is great and not declining. But in all these 
countries not only are the legislature and executive in close 
touch with one another, but they settle their disputes without 
reference to the judiciary. The courts of law cannot be in- 
voked by the executive against the legislature, because ques- 
tions involving the validity of a legislative act do not come 
before it, since the legislature is either completely sovereign, 
as in England, or the judge of its own competence, as in Bel- 
gium. The judiciary, in other words, does not enter into the 
consideration of the political part of the machinery of govern- 
ment. 

This system of so-called cabinet government seems to Euro- 
peans now, who observe it at work over a large part of the 
world, an obvious and simple system. We are apt to forget 
that it was never seen anywhere till the English developed it 
by slow degrees, and that it is a very delicate system, depend- 
ing on habits, traditions, and understandings which are not 
easily set forth in words, much less transplanted to a new soil. 

We are also prone to forget how very recent it is. People 
commonly date it from the reign of King William the Third ; 
but it worked very irregularly till the Hanoverian kings came 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 279 

to the throne, and even then it at first worked by means of a 
monstrous system of bribery and place-mongering. In the days 
of George the Third the personal power of the Crown for a 
while revived and corruption declined. 1 The executive head 
of the state was, during the latter decades of the century, a 
factor apart from his ministers. They were not then, as now, 
a mere committee of Parliament dependent upon Parliament, 
but rather a compromise between the king's will and the will 
of the parliamentary majority. They deemed and declared 
themselves to owe a duty to the king conflicting with, some- 
times overriding, their duty to Parliament. Those phrases of 
abasement before^ the Crown which when now employed by 
prime ministers amuse us by their remoteness from the reali- 
ties of the case, then expressed realities. In 1787, when the 
Constitutional Convention met at Philadelphia, the Cabinet 
system of government was in England still immature. It was 
so immature that its true nature had not been perceived. 2 And 
although we now can see that the tendency was really towards 
the depression of the Crown and the exaltation of Parliament, 
men might well, when they compared the influence of George 
III. with that exercised by George I., 3 argue in the terms of 

1 Corruption was possible, because the House of Commons did not look for 
support to the nation, its debates were scantily reported, it had little sense of 
responsibility. Au active king was therefore able to assert himself against it, 
and to form a party in it, as well as outside of it, which regarded him as its 
head. This forced the Whigs to throw themselves upon the nation at large ; 
the Tories did the same ; corruption withered away ; and as Parliament came 
more and more under the watchful eye of the people, and responsible to it, the 
influence of the king declined and vanished. 

2 Gouverneur Morris, however, one of the acutest minds in the Convention 
of 1787, remarked there, " Our President will be the British (Prime) Minister. 
If Mr. Fox had carried his India Bill, he would have made the Minister the 
King in form almost as well as in substance." — Elliot's Debates, i. 361. Roger 
Sherman, though he saw the importance of the Cabinet, looked on it as a mere 
engine in the Crown's hands. " The nation," he observed, in the Convention 
of 1787, "is in fact governed by the Cabinet council, who are the creatures of 
the Crown. The consent of Parliament is necessary to give sanction to their 
measures, and this they easily obtain by the influence of the Crown in ap- 
pointing to all offices of honour and profit." It must be remembered that 
the House of Lords was far more powerful in 1787 than it now is, not only 
as a branch of the legislature, but in respect of the boroughs owned by the 
leading peers : and therefore the dependence of the ministry on the House of 
Commons was a less prominent feature of the Constitution than it is now. 

3 George III. had the advantage of being a national king, whereas his two 
predecessors had been Germans by language and habits as well as by blood. 



280 THE NATIONAL GOVERNMENT part i 

Dunning's famous resolution, that "the power of the Crown 
has increased, is increasing, and ought to be diminished." * 

The greatest problem that free peoples have to solve is how 
to enable the citizens at large to conduct or control the execu- 
tive business of the state. England was in 1787 the only- 
nation (the cantons of Switzerland were so small as scarcely 
to be thought of) that had solved this problem, firstly, by the 
development of a representative system, secondly, by giving 
to her representatives a large authority over the executive. 
The Constitutional Convention, therefore, turned its eyes to 
her when it sought to constitute a free government for the 
new nation which the " more perfect union " of the States 
was calling into conscious being. 

Very few of the members of the Convention had been in 
England so as to know her constitution, such as it then was, 
at first hand. Yet there were three sources whence light fell 
upon it, and for that light they were grateful. One was their 
experience in dealing with the mother country since the quar- 
rel began. They saw in Britain an executive largely influ- 
enced by the personal volitions of the king, and in its conduct 
of colonial and foreign affairs largely detached from and inde- 
pendent of Parliament, since it was able to take tyrannical 
steps without the previous knowledge or consent of Parlia- 
ment, and able afterwards to defend those steps by alleging a 

His popularity contributed to his influence in politics. Mrs. Papendiek's Diary 
contains some amusing illustrations of the exuberant demonstrations of "loy- 
alty" which he excited. When he went to Weymouth for sea-bathing after 
his recovery from the first serious attack of lunacy, crowds gathered along the 
shore, and bands of music struck up " God save the King " when he ducked 
his head beneath the brine. 

1 It is not easy to say when the principle of the absolute dependence of min- 
isters on a parliamentary majority without regard to the wishes of the Crown 
passed into a settled doctrine. (Needless to say thai it has received no for- 
mally legal recognition, but is merely usage.) The long coincidence during the 
dominance of Pitt and his Tory successors down till 1827 o( the wishes and 
interests of the Crown with those of the parliamentary majority prevented 
the question from arising in a practical shape. Even in 1827 Mr. Canning writes 
to J. W. Croker: — "Am T to understand, then, that you consider the King 
[George IV.] as completely in the hands of the Tory aristocracy as his father, 
or rather as George II. was in tln> hands of the Whigs? If so. George ill. 
reigned and Air. Pitt (both father and son) administered the Government in 
vain. I have a better opinion of the real vigour of the Crown when it chooses 
to put forth its own Strength, and I am not without some reliance on the body 

of the people! w — Croker Correspondence, vol. i. p. 368. 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 281 

necessity whereof Parliament, wanting confidential informa- 
tion, could imperfectly judge. It was in these colonial and 
foreign affairs that the power of the Crown chiefly lay (as, 
indeed, to this day the authority of Parliament over the 
executive is smaller here than in any other department, because 
secrecy and promptitude are more essential), so they could 
not be expected to know for how much less the king counted 
in domestic affairs. Moreover, there was believed to be often 
a secret junto which really controlled the ministry, because 
acting in concert with the Crown ; and the Crown had power- 
ful engines at its disposal, bribes and honours, pensions and 
places, engines irresistible by the average virtue of represen- 
tatives whose words and votes were not reported, and nearly 
half of whom were the nominees of some magnate. 1 

The second source was the legal presentation of the English 
Constitution in scientific text-books, and particularly in Black- 
stone, whose famous Commentaries, first published in 1765 
(their substance having been delivered as professorial lectures 
at Oxford in 1758 and several succeeding years), had quickly 
become the standard authority on the subject. Now Black- 
stone, as is natural in a lawyer who looks rather to the strict 
letter of the law than to the practice which had grown up modi- 
fying it, describes the royal prerogative in terms more appro- 
priate to the days of the Stuarts than to those in which he 
wrote, and dwells on the independence of the executive, while 
also declaring the withholding from it of legislative power to 
be essential to freedom. 2 

1 George III. had pocket boroughs and a strong parliamentary following. 
Hamilton doubted whether the British Constitution could be worked without 
corruption. 

2 See Blackstone, Commentaries, bk. i. chap. ii. — "Whenever the power 
of making and that of enforcing the laws are united together, there can be no 
public liberty. . . . "Where the legislative and executive authority are in dis- 
tinct hands, the former will take care not to entrust the latter with so large a 
power as may tend to the subversion of its own independence, and therewith 
of the liberty of the subject. . . . The Crown cannot of itself begin any altera- 
tion in the present established law; but it may approve or disapprove of the 
alterations suggested and consented to by the two Houses. The legislative, 
therefore, cannot abridge the executive power of any rights which it now has 
by law without its own consent." There is no hint here, or in chap. vii. on the 
royal prerogative, that the royal power of disapproval had not been in fact 
exercised for some fifty years. Blackstone does not quote Montesquieu for 
the particular proposition that the powers must be separated, but has evi- 
dently been influenced by him. A little later he cites a famous dictum, " The 



282 THE NATIONAL GOVERNMENT part i 

The third source was the view of the English Constitution 
given by the political philosophers of the eighteenth century, 
among whom, since he was by far the most important, we need 
look at Montesquieu alone. 

When the famous treatise on The Spirit of Laivs appeared in 
1748, a treatise belonging to the small class of books which 
permanently turn the course of human thought, and which, un- 
like St. Augustine's City of God, turned it immediately instead 
of having to wait for centuries till the hour of its power ar- 
rived, it dwelt upon the separation of the executive, legisla- 
tive, and judicial powers in the British Constitution as the 
most remarkable feature of that system. Accustomed to see 
the two former powers, and to some extent the third also, ex- 
ercised by or under the direct control of the French monarch, 
Montesquieu attributed English freedom to their separation. 1 
The King of Great Britain then possessed a larger prerogative 
than he has now, and as even then it seemed on paper much 
larger than it really was, it was natural that a foreign observer 
should underrate the executive character of the British Parlia- 
ment and overrate the personal authority of the monarch. 
Now Montesquieu's treatise was taken by the thinkers of the 
next generation as a sort of Bible of political philosophy. 
Hamilton and Madison, the two earliest exponents of the 
American Constitution they had done so much to create, cite 
it in the Federalist much as the schoolmen cite Aristotle, that 
is, as an authority to which everybody will bow ; and Madison 
in particular constantly refers to this separation of the three 
powers as the distinguishing note of a free government. 

These views of the British Constitution tallied with and 
were strengthened by the ideas and habits formed in the 
Americans by their experience of representative government in 
the colonies, ideas and habits which were after all the domi- 
nant factor in the construction of their political system. In 
these colonies the executive power had been vested either in 

President Montesquieu, though I trust too hastily, presages that as Rome, 
Sparta, and Carthage have lest their liberty and perished, so the Constitution 
of England will in time lose its liberty — will perish: it will perish whenever 
the legislative power shall become more corrupt than the executive." 

1 Locke had already remarked {On Civil Government, chap. xiv.) that "the 
legislative and executive powers are in distincl hands in all moderated mon- 
archies and well-framed governments." 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 283 

governors sent from England by the Crown, or in certain Pro- 
prietors, to whom the English Crown had granted hereditary 
rights in a province. Each representative assembly, while it 
made laws and voted money for the purposes of its respective 
commonwealth, did not control the governor, because his com- 
mission issued from the British Crown, and he was responsible 
thereto. A governor had no parliamentary cabinet, but only 
officials responsible to himself and the Crown. His veto on 
acts of the colonial legislature was frequently used ; and that 
body, with no means of influencing his conduct other than the 
refusal to vote money, was a legislature and nothing more. 
Thus the Americans found and admired in their colonial (or 
State) systems, a separation of the legislative from the execu- 
tive branch, more complete than in England ; and being already 
proud of their freedom, they attributed its amplitude chiefly to 
this cause. 

From their colonial and State experience, coupled with these 
notions of the British Constitution, the men of 1787 drew three 
conclusions : Firstly, that the vesting of the executive and the 
legislative powers in different hands was the normal and natu- 
ral feature of a free government. Secondly, that the power 
of the executive was dangerous to liberty, and must be kept 
within well-defined boundaries. Thirdly, that in order to 
check the head of the state it was necessary not only to define 
his powers, and appoint him for a limited period, but also to 
destroy his opportunities of influencing the legislature. Con- 
ceiving that ministers, as named by and acting under the orders 
of the President, would be his instruments rather than faithful 
representatives of the people, they resolved to prevent them 
from holding this double character, and therefore forbade 
" any person holding office under the United States " to be a 
member of either House. 1 They deemed that in this way they 
had rendered their legislature pure, independent, vigilant, the 
servant of the people, the foe of arbitrary power. Omnipo- 

1 In 1700 the English Act of Settlement enacted that " no person who has 
an office or a place of profit nnder the King shall be capable of serving as a 
member of the House of Commons." This provision never took effect, having 
been repealed by the Act 4 Anne, c. 8. But the holding of the great majority 
of offices under the Grown is now, by statute, a disqualification for sitting in 
the House of Commons. See Anson, Law and Custom of the Constitution, 
vol. i. p. 174. 



284 THE NATIONAL GOVERNMENT part i 

tent, however, the framers of the Constitution did not mean to 
make it. They were sensible of the opposite dangers which 
might flow from a feeble and dependent executive. The pro- 
posal made in the first draft of the Constitution that Congress 
should elect the President, was abandoned, lest he should be 
merely its creature and unable to check it. To strengthen his 
position, and prevent intrigues among members of Congress for 
this supreme office, it was settled that the people should them- 
selves, through certain electors appointed for the purpose, 
choose the President. By giving him the better status of a 
popular, though indirect, mandate, he became independent of 
Congress, and was encouraged to use his veto, which a mere 
nominee of Congress might have hesitated to do. Thus it was 
believed in 1787 that a due balance had been arrived at, the 
independence of Congress being secured on the one side and 
the independence of the President on the other. Each power 
holding the other in check, the people, jealous of their hardly- 
won liberties, would be courted by each, and safe from the en- 
croachments of either. 

There was of course the risk that controversies as to their 
respective rights and powers would arise between these two 
departments. But the creation of a court entitled to place an 
authoritative interpretation upon the Constitution in which the 
supreme will of the people was expressed, provided a remedy 
available in many, if not in all, of such cases, and a security 
for the faithful observance of the Constitution which England 
did not, and under her system of an omnipotent Parliament 
could not, possess. 

" They builded better than they knew." They divided the 
legislature from the executive so completely as to make each 
not only independent, but weak even in its own proper sphere. 
The President was debarred from carrying Congress along with 
him, as a popular prime minister may carry Parliament in 
England, to effect some sweeping change. He is fettered in 
foreign policy, and in appointments, by the concurrent rights 
of the Senate, fee is forbidden to appeal at a crisis from Con- 
gress to the country. Nevertheless his office retains a meas- 
ure of solid independence in the fact that the nation regards 
him as a direct representative and embodiment of its majestyj 
while the circumstance that he holds office for four years only 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 285 



makes it possible for him to do acts of power during those four 
years which would excite alarm from a permanent sovereign. 
Entrenched behind the ramparts of a rigid Constitution, he has 
retained rights of which his prototype the English king has 
been gradually stripped. Congress on the other hand was 
weakened, as compared with the British Parliament in which 
one House has become dominant, by its division into two co- 
equal houses, whose disagreement paralyzes legislative action. 
And it lost that direct control over the executive which the 
presence of ministers in the legislature, and their dependence 
upon a majority of the popular House, give to the Parliaments 
of Britain and her colonies. It has diverged widely from the 
English original which it seemed likely, with only a slight dif- 
ference, to. reproduce. 

The British House of Commons has grown to the stature of 
a supreme executive as well as legislative council, acting not 
only by its properly legislative power, but through its right to 
displace ministers by a resolution of want of confidence, and 
to compel the sovereign to employ such servants as it approves. 
Congress remains a pure legislature, unable to displace a min- 
ister, unable to choose the agents by whom its laws are to be 
carried out, and having hitherto failed to develop that internal 
organization which a large assembly needs in order to frame 
and successfully pursue definite schemes of policy. Neverthe- 
less, so far-reaching is the power of legislation, Congress has 
encroached, and may encroach still farther, upon the sphere of 
the executive. It encroaches not merely with a conscious pur- 
pose, but because the law of its being has forced it to create in 
its committees bodies whose expansion necessarily presses on 
the executive. It encroaches because it is restless, unwearied, 
always drawn by the progress of events into new fields of 
labour. 

These observations may suffice to show why the Eathers of 
the Constitution did not adopt the English parliamentary or 
Cabinet system. They could not adopt it because they did not 
know of its existence. They did not know of it because it 
was still immature, because Englishmen themselves had not 
understood it, because the recognized authorities did not men- 
tion it. There is not a word in Blackstone, much less in 
Montesquieu, as to the duty of ministers to resign at the bid- 



286 THE NATIONAL GOVERNMENT 



cling of the House of Commons, nor anything to indicate that 
the whole life of the House of Commons was destined to 
centre in the leadership of ministers. Whether the Fathers 
would have imitated the cabinet system had it been proposed 
to them as a model may be doubted. They would probably 
have thought that the creation of a frame of government so 
unified, so strong, so capable of swiftly and irresistibly accom- 
plishing the purposes of a transitory majority as we now 
perceive it to be, might prove dangerous to those liberties of 
the several States, as well as of individual citizens, which 
filled the whole background of their landscape. But as the 
idea never presented itself, we cannot say that it was rejected, 
nor cite the course they took as an expression of their judg- 
ment against the system under which England and her colonies 
have so far prospered. 

That system could not be deemed to have reached its ma- 
turity till the power of the people at large had been established 
by the Eeform Act of 1832. For its essence resides in the 
delicate equipoise it creates between the three powers, the 
ministry, the House of Commons, and the people. The House 
is strong, because it can call the ministry to account for every 
act, and can, by refusing supplies, compel their resignation. 
The ministry are not defenceless, because they can disi 
Parliament, and ask the people to judge between it and them. 
Parliament, when it displaces a ministry, does not strike at 
executive authority : it merely changes its agents. The min- 
istry, when they dissolve Parliament, do not attack Parlia- 
ment as an institution: they recognize the supremacy of the 
body in asking the country to change the individuals who com- 
pose it. Both the House of Commons and the ministry act 
and move in the full view of the people, who sit as arbiters. 
prepared to judge in any controversy that may arise. The 
House is in touch with the people, because every member 
must watch the lights and shadows of sentiment which play 
over his own constituency. The ministry are in touch with 
the people, because they are not only themselves representa- 
tives, but are heads of a great party, sensitive to its feelings. 
forced to weigh the effeol of every act they do upon the con- 
fidence which their party places ill them. The only conjunc- 
ture which this system of ••cheeks and balances" does not 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 287 



provide for is that of a ministry supported by a parliamentary 
majority pursuing a policy which was not presented to the 
people at the last general election, and of which the bulk of 
the people in fact disapprove. 1 This is a real danger, yet one 
which can seldom last loug enough to work grave mischief, 
for the organs of public opinion are now so potent, and the 
opportunities for its expression so numerous, that the anger of 
a popular majority, perhaps even of a very strong minority, is 
almost certain to alarm both the ministry and the House, and 
to arrest them in their course. 2 

The drawback to this system of exquisite* equipoise is the 
liability of its equilibrium to be frequently disturbed, each dis- 
turbance involving either a change of government, with immense 
temporary inconvenience to the departments, or a general elec- 
tion, with immense expenditure of money and trouble in the 
country. It is a system whose successful working presupposes 
the existence of two great parties and no more, parties each 
strong enough to restrain the violence of the other, yet one of 
them steadily preponderant in any given House of Commons. 
Where a third, perhaps a fourth, party appears, the conditions 
are changed. The scales of Parliament oscillate as the weight 
of this detached group is thrown on one side or the other ; dis- 
solutions become more frequent, and even dissolutions may fail 
to restore stability. The recent history of the French Republic 
has shown the difficulties of working a Chamber composed 
of groups : nor is the same source of difficulty unknown in 
England. 

It is worth while to compare the form which a constitutional 
struggle takes under the Cabinet system and under that of 
America. 

In England, if the executive ministry displeases the House 

1 The recent leading case on this subject is that of Lord Beaconsfield's Gov- 
ernment from 1876 till 1880. 

2 " The da,ngers arising from a party spirit in Parliament exceeding that of 
the nation, and of a selfishness in Parliament contradicting the true interest of 
the nation, are not great dangers in a country where the mind of the nation is 
steadily political, and where its control over its representatives is constant. 
A steady opposition to a formed public opinion is hardly possible in our House 
of Commons, so incessant is the national attention to politics, and so keen the 
fear in the mind of each member that he may lose his valued seat." — Walter 
Bagehot, English Constitution, p. 241. These remarks of the most acute of 
English political writers are even more true now than they were in 1872. 



288 THE NATIONAL GOVERNMENT v.xm i 

of Commons, the House passes an adverse vote. The ministry 
have their choice to resign or dissolve Parliament. If they 
resign, a new ministry is appointed from the party which has 
proved itself strongest in the House of Commons ; and co-oper- 
ation being restored between the legislature and the executive, 
public business proceeds. If, on the other hand, the ministry 
dissolve Parliament, a new Parliament is sent up which, if 
favourable to the existing cabinet, keeps them in office, if un- 
favourable, dismisses them forthwith. 1 Accord is in either 
case restored. Should the difference arise between the House 
of Lords and a ministry supported by the House of Commons, 
and the former persist in rejecting a bill which the Commons 
send up, a dissolution is the usual remedy ; and if the newly- 
elected House of Commons reasserts the view of its predecessor, 
the Lords, according to the now recognized constitutional prac- 
tice, yield at once. Should they, however, still stand out, there 
remains the extreme expedient, threatened in 1832, but never 
yet resorted to, of a creation b}? - the sovereign (i.e. the ministry) 
of new peers sufficient to turn the balance of votes in the Upper 
House. Practically the ultimate decision always rests with the 
peojue, that is to say, with the party which for the moment 
commands a majority of electoral votes. This method of 
cutting knots applies to all differences that can arise between 
executive and legislature. It is a swift and effective method ; 
in this swiftness and effectiveness lie its dangers as well as its 
merits. 

In America a dispute between the President and Congress 
may arise over an executive act or over a bill. If over an 
executive act, an appointment or a treaty, one branch of Con- 
gress, the Senate, can check the President, that is. can prevent 
him from doing what he wishes, but cannot make him do what 
they wish. If over a bill which the President lias returned to 
Congress unsigned, the two Houses can. by a two-thirds majority. 
pass it over his veto, and so end the quarrel : though the earry- 

1 Recenl Instances, dating from Mr. Disraeli's resignation in December 
1868, when the results of the election of thai year were ascertained, have 
established the usage thai a ministry quits office, without waiting to ho turned 
out , when they know that die election has given a decisive majority to the oppo- 
sition. The precedent was Followed in 1874, 1880, ana 1886, bul not in 1886 and 
1882, when the " regular" Opposition had not an absolute majority, though the 
ministry was beaten. The usage, however, is uol yel a rule of the Constitution. 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 289 

ing out of the bill in its details must be left to him and his 
ministers, whose dislike of it may render them unwilling and 
therefore unsuitable agents. Should there not be a tAvo-thirds 
majority, the bill drops 5 and however important the question 
may be, however essential to the country some prompt dealing 
with it, either in the sense desired by the majority of Congress 
or in that preferred by the President, nothing can be done till 
the current term of Congress expires. The matter is then 
remitted to the people. If the President has still two more 
years in office, the people may signify their approval of his 
policy by electing a House in political agreement with him, or 
disapprove it by re-electing a hostile House. If the election 
of a new President coincides with that of the new House, the 
people have a second means provided of expressing their judg- 
ment. They may choose not only a House of the same or an 
opposite complexion to the last, but a President of the same 
or an opposite complexion. Anyhow they can now establish 
accord between one House of Congress and the executive. 1 The 
Senate, however, may still remain opposed to the President, 
and may not be brought into harmony with him until a suffi- 
cient time has elapsed for the majority in it to be changed by 
the choice of new senators by the State legislatures. This is a 
slower method than that of Britain. It may fail in a crisis 
needing immediate action ; but it escapes the danger of a hur- 
ried and perhaps irrevocable decision. 

Englishmen deem it a merit in their system that the prac- 
tical executive of the country is directly responsible to the 
House of Commons. In the United States, however, not only 
in the national government, but in every one of the States, the 
opposite doctrine prevails — that the executive should be wholly 
independent of the legislative branch. Americans understand 
that this scheme involves a loss of power and efficiency, but 
they believe that it makes greatly for safety in a popular gov- 

1 It is of course possible that the people may elect at the same time a 
President belonging to one party and a House the majority whereof belongs 
to the other party. This happened in 1848, and again in 1876, when, however, 
the presidential election was disputed. It is rendered possible by the fact that 
the President is elected on a different plan from the House, the smaller States 
having relatively more weight in a presidential election, and the presidential 
electors being now chosen, in nearly every State, by "general ticket," not in 
districts. 

VOL. I U 



290 THE NATIONAL GOVERNMENT pabt i 

eminent. They expect the executive and the legislature to 
work together as well as they can, and public opinion does 
usually compel a degree of co-operation and efficiency which 
perhaps could not be expected theoretically. It is an interest- 
ing commentary on the tendencies of democratic government, 
that in America reliance is coming to be placed more and 
more, in the nation, in the State, and in the city, upon the 
veto of the Executive as a protection to the community against 
the legislative branch. Weak Executives frequently do harm, 
but a strong Executive has rarely abused popular confidence. 
On the other hand, instances where the Executive, by the use 
of his veto power, has arrested mischiefs due to the action of 
the legislature are by no means rare. This circumstance leads 
some Americans to believe that the day is not far distant when 
in England some sort of veto power, or other constitutional 
safeguard, must be interposed to protect the people against a 
hasty decision of their representatives. 

While some bid England borrow from her daughter, other 
Americans conceive that the separation of the legislature from 
the executive has been carried too far in the United States. 
and suggest that it would be an improvement if the ministers 
of the President were permitted to appear in both Houses of 
Congress to answer questions, perhaps even to join in debate. 
I have no space to discuss the merits of this proposal, which 
no doubt derives support from the "particularistic" tendencies 
of Congress, in which there is no group of persons bound, like 
a British ministry, to maintain the interests of the country as a 
whole. But I must observe that it might lead to changes more 
extensive than its advocates seem to contemplate. The more 
the President's ministers come into contact with Congress, the 
more difficult will it be to maintain the independence of Con- 
gress which he and they now possess. "When not long ago the 
Norwegian Stor Thing forced the King o( Sweden and Norway 
to consent to Ins ministers appearing in that legislature, the 
king, perceiving the import of the concession, resolved to 
choose in future ministers in accord with the party holding a 
majority in the Stor Thing. It 1S hard to say. when one be- 
gins to make alterations in an old honse. how far one will be 
led on in rebuilding, and 1 doubt whether this change in the 
present American system, possibly in itself desirable, might 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 291 

not be found to involve a reconstruction large enough to put a 
new face upon several parts of that system. 

In the history of the United States there have been four 
serious conflicts between the legislature and the executive. 
The first was that between President Jackson and Congress. 
It ended in Jackson's favour, for he got his way; but he pre- 
vailed because during the time when both Houses were against 
him, his opponents had not a two-thirds majority. In the lat- 
ter part of the struggle the (re-elected) House was with him ; 
and before he had quitted office his friends obtained a majority 
in the always-changing Senate. But his success was not so 
much the success of the executive office as of a particular Pres- 
ident popular with the masses. The second contest, which was 
between President Tyler and both Houses of Congress, was a 
drawn battle, because the majority in the Houses fell short 
of two-thirds. In the third, between President Johnson and 
Congress, Congress prevailed ; the enemies of the President 
having, owing to the disfranchisement of most Southern States, 
an overpowering majority in both Houses, and by that majority 
carrying over his veto a series of Acts so peremptory that even 
his reluctance to obey them could not destroy, though it some- 
times marred, their efficiency. In the fourth case, referred to 
in a previous chapter, the victory remained with the President, 
because the Congressional majority against him was slender. 
But a presidential victory is usually a negative victory. It 
consists not in his getting what he wants, but in his prevent- 
ing Congress from getting what it wants. 1 The practical re- 
sult of the American arrangements thus comes to be that when 
one party possesses a large majority in Congress it can over- 
power the President, taking from him all but a few strictly 
reserved functions, such as those of pardoning, of making pro- 
motions in the army and navy, and of negotiating (not of con- 
cluding treaties, for these require the assent of the Senate) 
with foreign states. Where parties are pretty equally divided, 
i.e. when the majority is one way in the Senate, the other way 
in the House, or when there is only a small majority against 

1 In the famous case of President Jackson's removal of the government 
deposits of money from the United States Bank, the President did accomplish 
his object. But this was a very exceptional case, being one which had remained 
within the executive discretion of the President, since no statute had happened 
to provide for it. 



292 THE NATIONAL GOVERNMENT part i 

the President in both Houses, the President is in so far free 
that new fetters cannot be laid upon him ; but he must move 
under those which previous legislation has imposed, and can 
take no step for which new legislation is needed. 

It is another and a remarkable consequence of the absence of 
cabinet government in America, that there is also no party 
government in the European sense. Party government in 
France, Italy, and England means, that one set of men, united, 
or professing to be united, by holding one set of opinions, have 
obtained control of the whole machinery of government, and 
are working it in conformity with those opinions. Their 
majority in the country is represented by a majority in the 
legislature, and to this majority the ministry of necessity 
belongs. The ministry is the supreme committee of the 
party, and controls all the foreign as well as domestic affairs 
of the nation, because the majority is deemed to be the 
nation. It is otherwise in America. Men do, no doubt, talk 
of one party as being "in power," meaning thereby the party to 
which the then President belongs. But they do so because 
that party enjoys the spoils of office, in which to so many poli- 
ticians the value of power consists. They do so also because 
in the early days the party which prevailed in the legislative 
usually prevailed also in the executive department, and because 
the presidential election was, and still is, the main struggle 
Avhich proclaimed the predominance of one or other party. 1 

But the Americans, when they speak of the Administration 
party as the party in power, have, in borrowing an English 
phrase, applied it to utterly different facts. Their "party in 
power" need have no "power" beyond that of securing places 
for its adherents. It may be in a minority in one House of 
Congress, in which event it accomplishes nothing, but can at 
most merely arrest adverse legislation, or in a small minority 
in both Houses of Congress, in which event it must submit to 
see many things done which it dislikes. And if its enemies 
control the Senate even its executive arm is paralyzed. 

1 'I'lic history <>f the Republic divides itself in the mind of most Americana 
into a succession of Presidents and Administrations, just as old-fashioned his- 
torians divided the history of England by the reigns of kings, a tolerable way 
of reckoning in the days of Edward the Third and Richard the Second, when 
i he personal gifts of the sovereign were a chief factor in affairs, bul absurd in 

the days of Qeorge the Fourth and William the Fourth. 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 293 

Though party feeling has generally been stronger in America 
than in England, and even now covers a larger proportion of 
the voters, and enforces a stricter discipline, party government 
is distinctly weaker. 

Those who lament the violence of European factions may 
fancy America an Elysium where legislation is just and reason- 
able, because free from bias, where pure and enlarged views of 
national interest override the selfish designs of politicians. It 
would be nearer the truth to say that the absence of party 
control operates chiefly to make laws less consistent, and to 
prevent extended schemes of policy from being framed, because 
the chance of giving continuous effect to them is small. The 
natural history of the party system, and of the methods 
whereby it is worked, belongs to a later part of this book. 
The system is complete, the methods are elaborate, but the 
Constitution opposes obstacles unknown in France or England 
to the complete control by a party of the whole government of 
the country. 

We are now in a position to sum up the practical results 
of the scheme which purports to separate Congress from the 
executive, instead of uniting them as they are united under a 
cabinet government. I say " purports to separate," because it 
is plain that the separation, significant as it is, is less com- 
plete than current language imports, or than the Fathers of 
the Constitution would seem to have intended. The necessary 
coherence of the two powers baffled them. These results are 
five : — 

The President and his ministers have no initiative in Con- 
gress, little influence over Congress, except what they 
can exert upon individual members, through the be- 
stowal of patronage. 
Congress has, together with unlimited powers of inquiry, 
imperfect powers of control over the administrative 
departments. 
The nation does not always know how or where to fix re- 
sponsibility for misfeasance or neglect. The person and 
bodies concerned in making and executing the laws are 
so related to one another that each can generally shift 
the burden of blame on some one else, and no one acts 
under the full sense of direct accountability. 



294 THE NATIONAL GOVERN MK NT part i 

There is a loss of force by friction — i.e. part of the energy, 
force, and time of the men and bodies that make up the 
government is dissipated in struggles with one another. 
This belongs to all free governments, because all free 
governments rely upon checks. But the more checks, 
the more friction. 

There is a risk that executive vigour and promptitude may 
be found wanting at critical moments. 

We may include these defects in one general expression. 
There is in the American government, considered as a whole, a 
want of unity. Its branches are unconnected ; their efforts are 
not directed to one aim, do not produce one harmonious result. 
The sailors, the helmsman, the engineer, do not seem to have 
one purpose or obey one will, so that instead of making steady 
way the vessel may pursue a devious or zigzag coarse, and 
sometimes merely turn round and round in the water. The 
more closely any one watches from year to year the history of 
free governments, and himself swims in the deep-eddying time 
current, the more does he feel that current's force, so that hu- 
man foresight and purpose seem to count for little, and minis- 
ters and parliaments to be swept along they know not whither 
by some overmastering fate or overruling providence. But 
this feeling is stronger in America than in Europe, because in 
America such powers as exist act with little concert and resign 
themselves to a conscious impotence. Clouds arise, blot out 
the sun overhead, and burst in a tempest; the tempest passes. 
and leaves the blue above bright as before, but at the same mo- 
ment other clouds are already beginning to peer over the horizon. 
Parties are formed and dissolved, compromises are settled and 
assailed and violated, wars break out and are fought through 
and forgotten, new problems begin to show themselves, ami 
the civil powers, Presidents, and Cabinets, ami Stat^ govern- 
ments, and Houses of Congress, seem to have as little to do 
with all these changes, as little ability to foresee or avert or 
resist, them, as the farmer, who sees approaching the tornado 
which will uproot his crop, has power to stay its devastating 
course. 

A President can do little for he docs not lead either Congress 
or the nation. Congress cannot guide or stimulate the Presi- 
dent, nor replace him by a man titter for the emergency. The 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 295 

Cabinet neither receive a policy from Congress nor give one to 
it. Each, power in the state goes its own way, or wastes pre- 
cious moments in discussing which way it shall go, and that 
which comes to pass seems to be a result not of the action of 
the legal organs of the state, but of some larger force which 
at one time uses their discord as its means, at another neglects 
them altogether. This at least is the impression which the 
history of the greatest problem and greatest struggle that 
America has seen, the struggle of the slaveholders against the 
Free Soil and Union party, culminating in the war of the rebel- 
lion, makes upon one who looking back on its events sees them 
all as parts of one drama. Inevitable the struggle may have 
been ; and in its later stages passion had grown so hot, and the 
claims of the slaveholders so extravagant, that possibly under 
no scheme of government — so some high American authorities 
hold — could a peaceful solution have been looked for. Yet 
it must be remembered that the carefully devised machinery of 
the Constitution did little to solve that problem or avert that 
struggle, while the system of divided and balanced and limited 
powers, giving every advantage to those who stood by the ex- 
isting law, and placing the rights of the States behind the 
bulwarks of an almost unalterable instrument, may have tended 
to aggravate the spirit of uncompromising resistance. The na- 
tion asserted itself at last, but not till the resources which the 
Constitution provided for the attainment of a peaceful solution 
had irretrievably failed. 

Not wholly dissimilar was the course of events in the first 
years of the French Revolution. The Constitution framed by 
the National Assembly in 1791 so limited the functions and au- 
thority of each power in the state that no one person, no one 
body, was capable of leading either the nation or the legisla- 
ture, or of framing and maintaining a constructive policy. 
Things were left to take their own course. The boat drifted 
to the rapids, and the rapids hurried her over the precipice. 1 

This want of unity is painfully felt in a crisis. When a 
sudden crisis comes upon a free state, the executive needs two 

1 This Constitution of 1791 was framed under the same idea of the need for 
separating the executive and legislative departments which prevailed at Phila- 
delphia in 1787. For want of a legitimate supreme power, power at last fell 
into the hands of the Committee of Public Safety, and afterwards of the 
Directory. 



290 THE NATIONAL GOVERNMENT part i 

things, a large command of money and powers in excess of 
those allowed at ordinary times. Under the European system 
the duty of meeting such a crisis is felt to devolve as much on 
the representative Chamber as on tin ministers who are its 
agents. The Chamber is therefore at once appealed to for 
supplies, and for such legislation as the occasion demands. 
When these have been given, the ministry moves on with the 
weight of the people behind it; an* 1 as it is accustomed to 
work at all times with the Chamber, and the Chamber with it, 
the piston plays smoothly and quickly in the cylinder. In 
America the President has at ordinary times little to do with 
Congress, while Congress is unaccustomed to deal with execu- 
tive questions. Its machinery, and especially the absence of 
ministerial leaders and consequent want of organization, unfit 
it for promptly confronting practical troubles. It is apt to 
be sparing of supplies, and of that confidence which doubles 
the value of supplies. Jealousies of the executive, which are 
proper in quiet times and natural towards those with whom 
Congress has little direct intercourse, may now be perilous, yet 
how is Congress to trust persons not members of its own body 
nor directly amenable to its control ? When dangers thicken 
the only device maybe the Roman one of a temporary dictator- 
ship. Something like this happened in the War of Secession, 
for the powers then conferred upon President Lincoln, or exer- 
cised without Congressional censure by him. were almost as 
much in excess of those enjoyed under the ordinary law as 
the authority of a Roman dictator exceeded that of a Roman 
consul. 1 Fortunately the habits of legality, which lie deep in 
the American as they did in the Roman people, reasserted 
themselves after the war was over, as they were wont to do at 
Rome in her earlier and better days. When the squall had 
passed the ship righted, and she has pursued her subsequent 
course on as even a keel as be tore. 

The defects of the tools arc the glory of the workman. The 
more completely self-acting is the machine, tin 1 smaller is 
Hie intelligence needed to work it; the more liable it is to 
derangement, so much greater must be the skill and care 
applied by one who tends it. The English Constitution, 

1 For l. inc. .ln's argumetil respecting his use of extraordinary power-, see 
note to Chapter XXXIV. post. 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 297 

which we admire as a masterpiece of delicate equipoises and 
complicated mechanism, would anywhere but in England be 
full of difficulties and dangers. It stands and prospers in 
virtue of the traditions that still live among English states- 
men and the reverence that has ruled English citizens. It 
works by a body of understandings which no writer can 
formulate, and of habits which centuries have been needed 
to instil. So the American people have a practical aptitude 
for politics, a clearness of vision and capacity for self-control 
never equalled by any other nation. In 1861 they brushed 
aside their darling legalities, allowed the executive to exert 
novel powers, passed lightly laws whose constitutionality 
remains doubtful, raised an enormous army, and contracted 
a prodigious debt. Romans could not have been more ener- 
getic in their sense of civic duty, nor more trustful to their 
magistrates. When the emergency had passed away the 
torrent which had overspread the plain fell back at once into its 
safe and well-worn channel. The reign of legality returned ; 
and only four years after the power of the executive had 
reached its highest point in the hands of President Lincoln, 
it was reduced to its lowest point in those of President 
Johnson. Such a people can work any Constitution. The 
danger for them is that this reliance on their skill and their 
star may make them heedless of the faults of their political 
machinery, slow to devise improvements which are best ap- 
plied in quiet times. 



CHAPTER XXVI 

GENERAL OBSERVATIONS ON THE FRAME OF NATIONAL 
GOVERNMENT 

The account which, has been so far given of the working 
of the American Government has been necessarily an account 
rather of its mechanism than of its spirit. Its practical 
character, its temper and colour, so to speak, largely depend 
on the party system by which it is worked, and on what may 
be called the political habits of the people. These will be 
described in later chapters. Here, however, before quitting 
the study of the constitutional organs of government, it is 
well to sum up the criticisms we have been led to make, 
and to add a few remarks, for which no fitting place could 
be found in preceding chapters, on the general features of 
the national government. 

I. No part of the Constitution cost its framers so much 
time and trouble as the method of choosing the President. 
They saw the evils of a popular vote. They saw also the 
objections to placing in the hands of Congress the election 
of a person whose chief duty it was to hold Congress in check. 
The plan of having him selected by judicious persons, specially 
chosen by the people for that purpose, seemed to meet both 
difficulties, and was therefore recommended with confidence. 
The presidential electors have, however, turned out mere 
cyphers, and the President is practically chosen by the people 
at large. The only importance which the elaborate machin- 
ery provided in the Constitution retains, is that it prevents 
a simple popular vote in which the majority of the nation 
should prevail, and makes the issue of the election turn on the 
voting in certain "pivotal " States. 

I I. The choice oi' the President, by what is now practically 
a simultaneous popular vote, not only involves once in every 

298 



ch. xxvi REFLECTIONS ON FRAME OF GOVERNMENT 290 

four years a tremendous expenditure of energy, time, and 
money, but induces of necessity a crisis which, if it happens 
to coincide with any passion powerfully agitating the people, 
may be dangerous to the commonwealth. 

III. There is always a risk that the result of a presidential 
election may be doubtful or disputed on the ground of error, 
fraud, or violence. When such a case arises, the difficulty of 
finding an authority competent to deal with it, and likely to 
be trusted, is extreme. Moreover, the question may not be 
settled until the pre-existing executive has, by effluxion of 
time, ceased to have a right to the obedience of the citizens. 
The experience of the election of 1876 illustrates these dan- 
gers. Such a risk of interregna is incidental to all systems, 
monarchic or republican, which make the executive head 
elective, as witness the Eomano-Germanic Empire of the 
Middle Ages, and the Papacy. But it is more serious where 
he is elected by the people than where, as in France or 
Switzerland, he is chosen by the Chambers. 1 

IV. The change of the higher executive officers, and of 
many of the lower executive officers also, which usually takes 
place once in four years, gives a jerk to the machinery, and 
causes a discontinuity of policy, unless, of course, the Presi- 
dent has served only one term, and is re-elected. Moreover, 
there is generally a loss either of responsibility or of efficiency 
in the executive chief magistrate during the last part of his 
term. An outgoing President may possibly be a reckless 
President, because he has little to lose by misconduct, little 
to hope from good conduct. He may therefore abuse his 
patronage, or gratify his whims with impunity. But more 
often he is a weak President. 2 He has little influence with 
Congress, because his patronage will soon come to an end, 
little hold on the people, who are already speculating on 

1 In Switzerland the Federal Council of seven are elected by the two Cham- 
bers, and then elect one of their own number to be their President, and there- 
with also President of the Confederation (Constit. of 1874, art. 98) . In some 
British colonies it has been provided that, in case of the absence or death or 
incapacity of the Governor, the Chief Justice shall act as Governor. In India 
the senior member of Council acts in similar cases for the Viceroy. 

2 A British House of Commons in the last few months before its impending 
dissolution usually presents the same alternations of reckless electioneering 
and of a feebleness which recoils from any momentous decision. 



300 THE NATIONAL GOVERNMENT part i 

the policy of his successor. His secretary of state cannot 
treat boldly with foreign powers, who perceive that he has a 
diminished influence in the Senate, and know that the next 
secretary may have different views. 

The question whether the United States, which no doubt 
needed a President in 1789 to typify the then created political 
unity of the nation, might not now dispense with one, has 
never been raised in America, where the people, though dissat- 
isfied with the method of choice, value the office because it is 
independent of Congress and directly responsible to the 
people. Americans condemn any plan under which, as lately 
befel in France, the legislature can drive a President from 
power and itself proceed to choose a new one. 1 

V. The Vice-President's office is ill-conceived. His only 
ordinary function is to act as Chairman of the Senate, but as 
he does not appoint the Committees of that House, and has not 
even a vote (except a casting vote) in it, this function is of 
little moment. If, however, the President dies, or becomes 
incapable of acting, or is removed from office, the Vice-Presi- 
dent succeeds to the Presidency. AVhat is the result ? The 
place being in itself unimportant, the choice of a candidate for 
it excites little interest, and is chiefly used by the party man- 
agers as a means of conciliating a section of their party. It 
becomes what is called "a complimentary nomination." The 
man elected Vice-President is therefore never a man in the 
front rank. But when the President dies during his term of 
office, which has happened to four out of the eighteen Presi- 
dents, this second-class man steps into a great place for which 
he was never intended. Sometimes, as in the case of Mr. 
Arthur, he fills the place respectably. Sometimes, as in that 
of Andrew Johnson, he throws the country into confusion. 

He is aut mill us aut Coesar. 

VI. The defects in the structure and working of Congress, 
and in its relations to the executive, have been so fully dwelt 
on already that it is enough to refer summarily to them. They 
are — 

The discontinuity of Congressional policy. 
The want of adequate control over officials. 

1 The question of replacing the President by a ministerial council is very 
rarely discussed in America. It lias recently been mooted in France. 



ch. xxvi REFLECTIONS ON FRAME OF GOVERNMENT 301 

The want of opportunities for the executive to influence the 
legislature. 

The want of any authority charged to secure the passing of 
such legislation as the country needs. 

The frequency of disputes between three co-ordinate powers, 
the President, the Senate, and the House. 

The maintenance of a continuous policy is a difficulty in all 
popular governments. In the United States it is specially so, 
because — 

The executive head and his ministers are necessarily (unless 
when a President is re-elected) changed once every four 
years. 

One House of Congress is changed every two years. 

Neither House recognizes permanent leaders. 

No accord need exist between Congress and the executive. 

There is no such thing as a Party in Power, in the European 
sense of the term, because the party to which the Executive 
belongs may be in a minority in one or both Houses of Con- 
gress, in which case it cannot do anything which requires fresh 
legislation, — may be in a minority in the Senate, in which 
case it can take no administrative act of importance. 

There is little true leadership in political action, because 
the most prominent man has no recognized party authority. 
Congress was not elected to support him. He cannot threaten 
disobedient followers with a dissolution of Parliament like an 
English prime minister. He has not even the Erench presi- 
dent's right of dissolving the House with the consent of the 
Senate. 

There is often no general and continuous cabinet policy, 
because the cabinet has no authority over Congress, may per- 
haps have no influence with it. 

There is no general or continuous legislative policy, because 
the legislature, having neither recognized leaders, nor a guid- 
ing committee, acts through a large number of committees, 
independent of one another, and seldom able to bring their 
measures to maturity. "What continuity exists is due to the 
general acceptance of a few broad maxims, such as that of 
non-intervention in the affairs of the Old World, and to the 
fact that a large nation does not frequently or lightly change 
its views upon leading principles. In minor matters of legis- 



302 THE NATIONAL GOVERNMENT part i 

lation there is little settled policy, for the Houses trifle with 
questions, take them up in one session and drop thern the 
next, seem insensible to the duty of completing work once 
begun. Neither is there any security that Congress will 
attend to such minor defects in the administrative system of 
the country as may need a statute to correct them. In Europe 
the daily experience of the administrative departments dis- 
closes small faults or omissions in the law which involve need- 
less trouble to officials, needless cost to the treasury, needless 
injustice to classes of the people. Sometimes for their own 
sakes, sometimes from that desire to see things well done 
which is the life-breath of a good public servant, the perma- 
nent officials call the attention of their parliamentary chief, 
the minister, to the defective state of the law, and submit to 
him the draft of a bill to amend it. He brings in this bill, 
and if it involves no matter of political controversy (which it 
rarely does), he gets it passed. As an American minister has 
no means (except by the favour of a committee) of getting 
anything he proposes attended to by Congress, it is a mere 
chance if such amending statutes as these are introduced or 
pass into law. 

These defects are all reducible to two. There is an exces- 
sive friction in the American sj^stem, a waste of force in the 
strife of various bodies and persons created to check and bal- 
ance one another. There is a want of executive unity, and 
therefore a possible want of executive vigour. Tower is so 
much subdivided that it is hard at a given moment to concen- 
trate it for prompt and effective action. In fact, this happens 
only when a distinct majority of the people are so clearly of 
one mind that the several co-ordinate organs of government 
obey tins majority, uniting their efforts to serve its will. 

VII. The relations of the people to the legislature are in 
every free country so much the most refined and delicate, as 
well as so much the most important part o\' the whole scheme 
and doctrine of government, that we must nol expect to find 
perfection anywhere. But comparing America with Great 
Britain from L832 to L885 (for it is still too soon to judge the 
condition of things created by the Reform Acts of that year), 
the working oi the representative system in America seems 
Somewhat inferior. 



ch. xxvi REFLECTIONS ON FRAME OF GOVERNMENT 303 

There are four essentials to the excellence of a representa- 
tive system : — 

That the representatives shall be chosen from among the 
best men of the country, and, if possible, from its 
natural leaders. 
That they shall be strictly and palpably responsible to their 

constituents for their speeches and votes. 
That they shall have courage enough to resist a momentary 
impulse of their constituents which they think mis- 
chievous, i.e. shall be representatives rather than mere 
delegates. 
That they individually, and the Chamber they form, shall 
have a reflex action on the people, i.e. that while they 
derive authority from the people, they shall also give 
the people the benefit of the experience they acquire in 
the Chamber, as well as of the superior knowledge and 
. capacity they may be presumed to possess. 
Americans hold, and no doubt correctly, that of these four 
requisites, the first, third, and fourth are not attained in their 
country. Congressmen are not chosen from among the best 
citizens. They mostly deem themselves mere delegates. They 
do not pretend to lead the people, being indeed seldom spe- 
cially qualified to do so. 

That the second requisite, responsibility, is not fully real- 
ized seems surprising in a democratic country, and indeed 
almost inconsistent with that conception of the representa- 
tive as a delegate, which is supposed, perhaps erroneously, 
to be characteristic of democracies. Still the fact is there. 
One cause, already explained, is to be found in the committee 
system. Another is the want of organized leadership in Con- 
gress. In Europe, a member's responsibility takes the form 
of his being bound to support the leader of his party on all 
important divisions. In America, this obligation attaches 
only when the party has " gone into caucus," and there 
resolved upon its course. ISTot having the right to direct, the 
leader cannot be held responsible for the action of the rank 
and file. As a third cause we may note the fact that owing to 
the restricted competence of Congress many of the questions 
which chiefly interest the voter do not come before Congress 
at all, so that its proceedings are not followed with that close 



304 THE NATIONAL GOVERNMENT part i 

and keen attention which, the debates and divisions of Euro- 
pean Chambers excite. 

In general the reciprocal action and reaction between the 
electors and Congress, what is commonly called the "touch" 
of the people with their agents, is not sufficiently close, quick, 
and delicate, representatives ought to give light and leading 
to the people, just as the people give stimulus and momentum 
to their representatives. This incidental merit of the parlia- 
mentary system is among its greatest merits. But in America 
the action of the voter fails to tell upon Congress. He votes 
for a candidate of his own party, but he does not conve} r to that 
candidate an impulse towards the carrying of particular meas- 
ures, because the candidate when in Congress will be practi- 
cally unable to promote those measures, unless he happens to 
be placed on the committee to which they are referred. 
Hence the citizen, when he casts his ballot, can seldom feel 
that he is advancing any measure or policy, except the vague 
and general policy indicated in his party platform. He is 
voting for a party, but he does not know what the party will 
do, and for a man, but a man whom chance may deprive of 
the opportunity of advocating the measures he cares most for. 

Conversely, Congress does not guide and illuminate its con- 
stituents. It is amorphous, and has little initiative. It does 
not focus the light of the nation, does not warm its imagination, 
does not dramatize principles in the deeds and characters of 
men. 1 This happens because, in ordinary times, it lacks great 
leaders, and the most obvious cause why it lacks them, is its 
disconnection from the executive. As it is often devoid of 
such men, so neither does the country habitually come to it to 
look for them. In the old days, neither Hamilton, nor Jeffer- 
son, nor John Adams, in our own time, neither Stanton, nor 
Grant, nor Tilden, nor Cleveland ever sat in Congress. Lin- 
coln sat for two years only, and owed little of his subsequent 
eminence to his career there. 

1 As an illustration of the want of the dramatic element in Congress, I may 
mention that some at least of the parliamentary debating societies in the 
American colleges (colleges for women Included) take for their model not 
either House of Congress bnl the British House i->( Commons, the students 
conducting their debates under the names o( prominenl members of that as- 
sembly. They say that they do this because Congress has no Ministry and no 
Leaders of the < Opposition. 



ch. xxvi REFLECTIONS ON ERAME OF GOVERNMENT 305 

VIII. The independence of the judiciary, due to its holding 
for life, has been a conspicuous merit of the Federal system, 
as compared with the popular election and short terms of 
judges in most of the States. Yet even the Federal judiciary 
is not secure from the attacks of the two other powers, if 
combined. For the legislature may by statute increase the 
number of Federal justices, increase it to any extent, since the 
Constitution leaves the number undetermined, and the Presi- 
dent may appoint persons whom he knows to be actuated by a 
particular political bias, perhaps even prepared to decide 
specific questions in a particular sense. Thus he and Congress 
together may obtain such a judicial determination of any con- 
stitutional question as they join in desiring, even although 
that question has been heretofore differently decided by the 
Supreme court. The only safeguard is in the disapproval of 
the people. 

It is worth remarking that the points in which the American 
frame of national government has proved least successful are 
those which are most distinctly artificial, i.e. those which are 
not the natural outgrowth of old institutions and well-formed 
habits, but devices consciously introduced to attain specific 
ends. 1 The election of the President and Vice-President by 
electors appointed ad hoc is such a device. The functions of 
the judiciary do not belong to this category ; they are the nat- 
ural outgrowth of common law doctrines and of the previous 
history of the colonies and States ; all that is novel in them, 
for it can hardly be called artificial, is the creation of Courts 
co-extensive with the sphere of the national government. 

All the main features of American government may be 

1 See Chapter IV. ante, and Note thereto. 

This may seem to be another way of saying that nature, i.e. historical devel- 
opment, is wiser than the wisest men. Yet it must be remembered that what 
we call historical development is really the result of a great many small expe- 
dients invented by men during many generations for curing the particular 
evils in their government which from time to time had to be cured. The moral 
therefore is that a succession of small improvements, each made conformably 
to existing conditions and habits, is more likely to succeed than a large scheme, 
made all at once in what may be called the spirit of conscious experiment. 
The Federal Constitution has been generally supposed in Europe to have been 
such a scheme, and its success has encouraged other countries to attempt simi- 
lar bold and large experiments. This is an error. The Constitution of the 
United States is almost as truly the matured result of long and gradual his- 
torical development as the English Constitution itself. 

VOL. I X 



306 THE NATIONAL GOVERNMENT part i 

deduced from two principles. One is the sovereignty of the 
people, which expresses itself in the fact that the supreme law 
— the Constitution — is the direct utterance of their will, that 
they alone can amend it, that it prevails against every other 
law, that whatever powers it does not delegate are deemed to 
be reserved to it, that every power in the State draws its 
authority, whether directly, like the House of Representatives, 
or in the second degree, like the President and the Senate, 
or in the third degree, like the Federal judiciary, from the 
people, and is legally responsible to the people, and not to any 
one of the other powers. 

The second principle, itself a consequence of this first one, 
is the distrust of the various organs and agents of government. 
The States are carefully safeguarded against aggression by the 
central government. So are the individual citizens. Each organ 
of government, the executive, the legislature, the judiciary, is 
made a jealous observer and restrainer of the others. Since 
the people, being too numerous, cannot directly manage their 
affairs, but must commit them to agents, they have resolved to 
prevent abuses by trusting each agent as little as possible, and 
subjecting him to the oversight of other agents, who will harass 
and check him if he attempts to overstep his instructions. 

Some one has said that the American Government and Con- 
stitution are based on the theology of Calvin and the philoso- 
phy of Hobbes. This at least is true, that there is a hearty 
Puritanism in the view of human nature which pervades the 
instrument of 1787. It is the work of men who believed in 
original sin, and were resolved to leave open for transgressors 
no door which they could possibly shut. 1 Compare this spirit 
with the enthusiastic optimism of the Frenchmen of 1789. It 
is not merely a difference of race temperaments; it is a differ- 
ence of fundamental ideas. 

With the spirit of Puritanism there is blent a double portion 
of the spirit of legalism. Not only is there no reliance on 
ethical forces to help the government to work: there is an 
elaborate machinery of law to preserve the equilibrium of each 
of its organs. The aim of the Constitution seems to be not so 
much to attain great common ends by securing a good govern- 

1 "That power might be abused," Bays Marshal] in his Liu of Washington, 
" was deemed a conclusive reason why it should not be conferred." 



ch. xxvi REFLECTIONS ON FRAME OF GOVERNMENT 307 

merit as to avert the evils which will flow, not merely from a 
bad government, but from any government strong enough to 
threaten the pre-existing communities or the individual citizen. 

The spirit of 1776, as it speaks to us from the Declaration 
of Independence and the glowing periods of Patrick Henry, 
was largely a revolutionary spirit, revolutionary in its faith in 
abstract principles, revolutionary also in its determination to 
carry through a tremendous political change in respect of 
grievances which the calm judgment of history does not deem 
intolerable, and which might probably have been redressed by 
less trenchant methods. But the spirit of 1787 was an English 
spirit, and therefore a conservative spirit, tinged, no doubt, by 
the hatred to tyranny developed in the revolutionary struggle, 
tinged also, by the nascent dislike to inequality, but in the 
main an English spirit, which desired to walk in the old paths 
of precedent, which thought of government as a means of main- 
taining order and securing to every one his rights, rather than 
as a great ideal power, capable of guiding and developing a 
nation's life. And thus, though the Constitution of 1789 
represented a great advance on the still oligarchic system of 
contemporary England, it was yet, if we regard simply its 
legal provisions, the least democratic of democracies. Had 
the points which it left undetermined, as for instance the quali- 
fications of congressional electors, been dealt with in an aristo- 
cratic spirit, had the legislation of Congress and of the several 
States taken an aristocratic turn, it might have grown into an 
aristocratic system. The democratic character which it now 
possesses is largely the result of subsequent events, which 
have changed the conditions under which it had to work, and 
have delivered its development into the hands of that passion 
for equality which has become a powerful factor in the modern 
world everywhere. 

He who should desire to draw an indictment against the 
American scheme of government might make it a long one, and 
might for every count in it cite high American authority and 
adduce evidence from American history. Yet a European 
reader would greatly err were he to conclude that this scheme 
of government is a failure, or is, indeed, for the purposes of 
the country, inferior to the political system of any of the great 
nations of the Old World. 



THE NATIONAL GOVERNMENT 



All governments are faulty ; and an equally minute analysis 
of the constitution of England, or France, or Germany would 
disclose mischiefs as serious, relatively to the problems with 
which those states have to deal, as those we have noted in the 
American system. To any one familiar with the practical 
working of free governments it is a standing wonder that they 
work at all. The first impulse of mankind is to follow and 
obey ; servitude rather than freedom is their natural state. 
With freedom, when it emerges among the more progressive 
races, there come dissension and faction ; and it takes many 
centuries to form those habits of compromise, that love of 
order, and that respect for public opinion which make democ- 
racy tolerable. What keeps a free government going is the 
good sense and patriotism of the people, or of the guiding class, 
embodied in usages and traditions which it is hard to describe, 
but which find, in moments of difficulty, remedies for the in- 
evitable faults of the system. Now, this good sense and that 
power of subordinating sectional to national interests which 
we call patriotism, exist in higher measure in America than in 
any of the great states of Europe. And the United States, 
more than any other country, are governed by public opinion, 
that is to say, by the general sentiment of the mass of the 
nation, which all the organs of the national government and of 
the State governments look to and obey. 1 

A philosopher from Jupiter or Saturn who should examine 
the constitution of England or that of America would probably 
pronounce that such a body of complicated devices, full of 
opportunities for conflict and deadlock, could not work at all. 
Many of those who examined the American Constitution when 
it was launched did point to a multitude of difficulties, and 
confidently predicted its failure. Still more confidently did 
the European enemies of free government declare in the crisis 
of the War of Secession that "the republican bubble had 
burst." Some of these censures were well grounded, though 
there were also defects which had escaped criticism, and were 
first disclosed by experience. But the Constitution lias lived 
on in spite of all defects, and seems stronger now than at any 
previous epoch. 

1 The nature of public opinion and the way in which it governs are discussed 
in Tart IV. 



ch. xxvi REFLECTIONS ON FRAME OF GOVERNMENT 309 



Every constitution, like every man, has " the defects of its 
good qualities." If a nation desires perfect stability it must 
put up with a certain slowness and cumbrousness ; it must face 
the possibility of a want of action where action is called for. 
If, on the other hand, it seeks to obtain executive speed and 
vigour by a complete concentration of power, it must run the 
risk that power will be abused and irrevocable steps too hastily 
taken. " The liberty-loving people of every country," says 
Judge Cooley, 1 "take courage from American freedom, and 
find augury of better days for themselves from American 
prosperity. But America is not so much an example in her 
liberty as in the covenanted and enduring securities which are 
intended to prevent liberty degenerating into licence, and to 
establish a feeling of trust and repose under a beneficent 
government, whose excellence, so obvious in its freedom, is 
still more conspicuous in its careful provision for permanence 
and stability." Those faults on which I have laid stress, the 
waste of power by friction, the want of unity and vigour in 
the conduct of affairs by executive and legislature, are the 
price which the Americans pay for the autonomy of their 
States, and for the permanence of the equilibrium among the 
various branches of their government. They pay this price 
willingly, because these defects are far less dangerous to the 
body politic than they would be in a European country. Take 
for instance the shortcomings of Congress as a legislative 
authority. Every European country is surrounded by diffi- 
culties which legislation must deal with, and that promptly. 
But in America, where those relics of mediaeval privilege and 
injustice that still cumber most parts of the Old World either 
never existed, or were long ago abolished, where all the con- 
ditions of material prosperity exist in ample measure, and the 
development of material resources occupies men's minds, where 
nearly all social reforms lie within the sphere of State action, 
— in America there is less need and less desire than in Europe 
for a perennial stream of federal legislation. People are con- 
tented if things go on fairly well as they are. Political philos- 
ophers, or philanthropists, perceive not a few improvements 
which federal statutes might effect, but the mass of the nation 
does not complain, and the wise see Congress so often on the 
1 Address to the South Carolina Bar Association, December 1886. 



310 THE NATIONAL GOVERNMENT part i 

point of committing mischievous errors that they do not 
deplore the barrenness of session after session. 

Every European state has to fear not only the rivalry but 
the aggression of its neighbours. Even Britain, so long safe 
in her insular home, has lost some of her security by the 
growth of steam navies, and has in her Indian and colonial 
possessions given pledges to Fortune all over the globe. She, 
like the Powers of the European Continent, must maintain 
her system of government in full efficiency for war as well 
as for peace, and cannot afford to let her armaments decline, 
her finances become disordered, the vigour of her executive 
authority be impaired, sources of internal discord continue to 
prey upon her vitals. But America lives in a world of her 
own, ipsa suis pollens opibus, nihil indiga nostri. Safe from 
attack, safe even from menace, she hears from afar the warring 
cries of European races and faiths, as the gods of Epicurus 
listened to the murmurs of the unhappy earth spread out 
beneath their golden dwellings, 

" Sejuncta a rebus nostris seinotaque longe." 

Had Canada or Mexico grown to be a great power, had France 
not sold Louisiana, or had England, rooted on the American 
continent, become a military despotism, the United States 
could not indulge the easy optimism which makes them toler- 
ate the faults of their government. As it is, that which might 
prove to a European state a mortal disease is here nothing 
worse than a teasing ailment. Since the War of Secession 
ended, no serious danger has arisen either from within or from 
without to alarm transatlantic statesmen. Social convulsions 
from within, war-like assaults from without, seem now as 
unlikely to try the fabric of the American Constitution, as an 
earthquake to rend the walls of the Capitol. This is why the 
Americans submit, not merely patiently but hopefully, to the 
defects of their government. The vessel may not be any better 
built, or found, or rigged than are those which carry the for- 
tunes of the great nations of Europe. She is certainly not 
better navigated. But for the presenl at least — it may not 
always be so — she Bails upon a Bummer sea. 

It must never be forgotten that the main object which the 
trainers of the Constitution set before themselves has been 



ch. xxvi REFLECTIONS ON FRAME OF GOVERNMENT 311 

achieved. When Sieyes was asked what he had done during 
the Reign of Terror, he answered, " I lived." The Constitu- 
tion as a whole has stood and stands unshaken. The scales 
of power have continued to hang fairly even. The President 
has not corrupted and enslaved Congress : Congress has not 
paralyzed and cowed the President. The legislative may have 
gained somewhat on the executive department ; yet were 
George Washington to return to earth, he might be as great 
and useful a President as he was a century ago. Neither the 
legislature nor the executive has for a moment threatened 
the liberties of the people. The States have not broken up the 
Union, and the Union has not absorbed the States. No won- 
der that the Americans are proud of an instrument under 
which this great result has been attained, which has passed 
unscathed through the furnace of civil war, which has been 
found capable of embracing a body of commonwealths more 
than three times as numerous, and with twenty-fold the popu- 
lation of the original States, which has cultivated the politi- 
cal intelligence of the masses to a point reached in no other 
country, which has fostered and been found compatible with 
a larger measure of local self-government than has existed else- 
where. Nor is it the least of its merits to have made itself 
beloved. Objections may be taken to particular features, 
and these objections point, as most American thinkers are 
agreed, to practical improvements which would preserve the 
excellences and remove some of the inconveniences. But 
reverence for the Constitution has become so potent a con- 
servative influence, that no proposal of fundamental change 
seems likely to be entertained. And this reverence is itself 
one of the most wholesome and hopeful elements in the charac- 
ter of the American people. 



CHAPTER XXVII 

THE FEDERAL SYSTEM 

Having examined the several branches of the National gov- 
ernment and the manner in which they work together, we may 
now proceed to examine the American Commonwealth as a 
Federation of States. The present chapter is intended to state 
concisely the main features which distinguish the Federal 
system, and from which it derives its peculiar character. 
Three other chapters will describe its practical working, and 
summarize the criticisms that may be passed upon it. 

The contests in the Convention of 1787 over the framing of 
the Constitution, and in the country over its adoption, turned 
upon two points : the extent to which the several States should 
be recognized as independent and separate factors in the con- 
struction of the National government, and the quantity and 
nature of the powers which should be withdrawn from the 
States to be vested in that government. It has been well re- 
marked that "the first of these, the definition of the structural 
powers, gave more trouble at the time than the second, because 
the line of partition between the powers of the States and the 
Federal government had been already fixed by the whole expe- 
rience of the country." 1 But since 1791 there has been prac- 
tically no dispute as to the former point, and little as to the 
propriety of the provisions which define the latter. On the 
interpretation of these provisions there has. however, been 
endless debate, some deeming the Constitution to have taken 
more from the States, some less; while still warmer contro- 
versies have raged as to the matters which the instrument 
does not expressly deal with, ami particularly whether the 
States retain their sovereignty, and with it the right of nullify - 

1 I quote from an acute and concise essay on thifl subject by Mr. Richard 
M. Venable Of Baltimore, entitled "The Partition Of Powers between the 

Federal and state Governments." 

813 



chap, xxvn THE FEDERAL SYSTEM 313 

ing or refusing to be bound by certain acts of the national gov- 
ernment, and in the last resort of withdrawing from the Union. 
As these latter questions (nullification and secession) have now 
been settled by the Civil War, we may say that in the America 
of to-day there exists a general agreement — 

That every State on entering the Union finally renounced its 
sovereignty, and is now for ever subject to the Federal authority 
as defined by the Constitution. 

That the functions of the States as factors of the national 
government are satisfactory, i.e. sufficiently secure its strength 
and the dignity of these communities. 

That the delimitation of powers between the national govern- 
ment and the States, contained in the Constitution, is conven- 
ient, and needs no fundamental alteration. 1 

The ground which we have to tread during the remainder of 
this chapter is therefore no longer controversial ground, but 
that of well-established law and practice. 

I. The distribution of powers between the National and the 
State governments is effected in two ways — Positively, by con- 
ferring certain powers on the National government ; Negatively, 
by imposing certain restrictions on the States. It would have 
been superfluous to confer any powers on the States, because 
they retain all powers not actually taken from them. A law- 
yer may think that it was equally unnecessary and, so to speak, 
inartistic, to lay any prohibitions on the National government, 
because it could ex hypothesi exercise no powers not expressly 
granted. However, the anxiety of the States to fetter the 
master they were giving themselves caused the introduction 
of provisions qualifying the grant of express powers, and inter- 
dicting the National government from various kinds of action 
on which it might otherwise have been tempted to enter. 2 

1 The view that the power of Congress to legislate might properly he ex- 
tended, hy a constitutional amendment, to such a subject as marriage and 
divorce, is of course compatible with an acquiescence in the general scheme of 
delimitation of powers. 

2 Judge Cooley observes to me, "The prohibitions imposed by the Federal 
Constitution on the exercise of power by the general government were not, for 
the most part, to prevent its encroaching on the powers left with the States, 
but to preclude tyrannical exercise of powers which were unquestionably given 
to the Federal government. Thus Congress was forbidden to pass any bill of 
attainder; this was to prevent its dealing with Federal offences by legislative 
conviction and sentence. It was forbidden to pass ex post facto laws, and this 



314 THE NATIONAL GOVERNMENT part i 

The matter is further complicated by the fact that the grant 
of power to the National government is not in all cases an 
exclusive grant : i.e. there are matters which both, or either, 
the States and the National government may deal with. " The 
mere grant of a power to Congress does not of itself, in most 
cases, imply a prohibition upon the States to exercise the like 
power. ... It is not the mere existence of the National 
power, but its exercise, which is incompatible with the exercise 
of the same power by the States." 1 Thus we may distinguish 
the following classes of governmental powers : — 

"Powers vested in the National government alone. 

Powers vested in the States alone. 

Powers exercisable by either the National government or the 
States. 

Powers forbidden to the National government. 

Powers forbidden to the State governments. 

It might be thought that the two latter classes are super- 
fluous, because whatever is forbidden to the National govern- 
ment must be permitted to the States, and conversely, whatever 
is forbidden to the States must be permitted to the National 
government. But this is not so. For instance, Congress can 
grant no title of nobility (Art. i. § 9). But neither can a State 
do so (Art. i. § 10). The National government cannot take 
private property for public use without just compensation 
(Amendment v.). Apparently neither can any State do so 
(Amendment xiv. as interpreted in several cases). So no 
State can pass any law impairing the obligation of a contract 
(Art. i. § 10). But the National government, although not 
subject to a similar direct prohibition, has received no general 
power to legislate as regards ordinary contracts, and might 
therefore in some cases find itself equally unable to pass a law 
which a State legislature, though for a different reason, could 
not pass. 2 So no State can pass any ex }>ost facto law. Neither 
can Congress. 

undoubtedly is ,1 limitation upon power granted; for with the same complete 
power in respect to otTenees against the general government which ■ sover- 
eignty possesses, it might have passed sueh laws if not prohibited." 

1 Cooley, Principle*! p. 36; of. Siurges v. Orowninshield, 4 Wheat. 139. 

s Of course Congress can legislate regarding some contracts, and can Impair 

their obligation. Ii lias [lower to regulate commerce, it can pass bankrupt 
laws, it can make paper money legal tender. 



chap, xxvn THE FEDERAL SYSTEM 315 

What the Constitution has done is not to cut in half the to- 
tality of governmental functions and powers, giving part to the 
national government and leaving all the rest to the States, but 
to divide up this totality of authority into a number of parts 
which do not exhaust the whole, but leave a residuum of 
powers neither granted to the Union nor continued to the 
States but reserved to the people, who, however, can put them 
in force only by the difficult process of amending the Constitu- 
tion. In other words, there are things in America which there 
exists no organized and permanent authority capable of legally 
doing, not a State, because it is expressly forbidden, not the 
national government, because it either has not received the 
competence or has been expressly forbidden. Suppose, for in- 
stance, that there should arise a wish to pass for California 
such a measure as the Irish Land Act passed by the British 
Parliament in 1881. Neither the State legislature of Califor- 
nia, nor the people of California assembled in a constitutional 
convention, could pass such a measure, because it would violate 
the obligation of contracts, and thereby transgress Art. i § 10 
of the Federal Constitution. Whether the Federal Congress 
could pass such a measure is at least extremely doubtful, be- 
cause the Constitution, though it has imposed no prohibition 
such as that which restricts a State, does not seem to have con- 
ferred on Congress the right of legislating on such a matter at 
all. 1 If, therefore, an absolute and overwhelming necessity for 
the enactment of such a measure should arise, the safer if not 
the only coarse would be to amend the Federal Constitution, 
either by striking out the prohibition on the States or by con- 
ferring the requisite power on Congress, a process which would 
probably occupy more than a year, and which requires the con- 
currence of two-thirds of both Houses of Congress and of three- 
fourths of the forty -four States. 

II. The powers vested in the National government alone are 
such as relate to the conduct of the foreign relations of the 
country and to such common national purposes as the army and 
navy, internal commerce, currency, weights and measures, and 

1 It may of course be suggested that in case of urgent public necessity, such 
as the existence of war or insurrection, Congress might extinguish debts either 
generally or in a particular district. No such legislative power seems, how- 
ever, to have been exerted or declared by the courts to exist, unless the prin- 
ciples of the last Legal Tender decision can be thought to reach so far. 



310 THE NATIONAL GOVERNMENT part i 

the post-office, with provisions for the management of the 
machinery, legislative, executive, and judicial, charged with 
these purposes. 1 

The powers which remain vested in the States alone are all 
the other ordinary powers of internal government, such as 
legislation on private law, civil and criminal, the maintenance 
of law and order, the creation of local institutions, the pro- 
vision for education and the relief of the poor, together with 
taxation for the above purposes. 

III. The powers which are exercisable concurrently by the 
National government and by the States are — 

Powers of legislation on some specified subjects, such as 
bankruptcy and certain commercial matters (e.g. pilot laws and 
harbour regulations), but so that State legislation shall take 
effect only in the absence of Federal legislation. 

Powers of taxation, direct or indirect, but so that neither 
Congress nor a State shall tax exports from any State, and 
so that neither any State shall, except with the consent of 
Congress, tax any corporation or other agency created for 
Federal purposes or any act done under Federal authority, 
nor the National government tax any State or its agencies or 
property. 

Judicial powers in certain classes of cases where Congress 
might have legislated, but has not, or where a party to a 
suit has a choice to proceed either in a Federal or a State 
court. 

Powers of determining matters relating to the election of 
representatives and senators (but if Congress determines, the 
State law gives way). 

IV. The prohibitions imposed on the National government 
are set forth in Art. i. § 9, and in the first ten amendments. 
The most important are — 

Writ of habeas corpus may not be suspended, nor bill of 
attainder or ex post facto law passed. - 

No commercial preference shall be given to ono State over 
another. 

1 See Art. i. § 8, Art. ii. § 2, Art. iii. § 2, Art. iv. §§ 3 and 4 : Amendments 
xiii. xiv. xv. of the Constitution. 

- Limitations of a nature generally similar to these are now pretty frequent 
in recent European Constitutions, <•.</. in that of Belgium. 

The term expost/aoto law is deemed to refer to criminal laws only. 



chap, xxvn THE FEDERAL SYSTEM 317 

No title of nobility shall be granted. 

No law shall be passed establishing or prohibiting any relig- 
ion, or abridging the freedom of speech or of the press, or of 
public meeting or of bearing arms. 

No religious test shall be required as a qualification for any 
office under the United States. 

No person shall be tried for a capital or otherwise infamous 
crime unless on the presentment of a grand jury, or be sub- 
jected to a second trial for the same offence, or be compelled 
to be a witness against himself, or be tried otherwise than by 
a jury of his State and district. 

No common law action shall be decided except by a jury 
where the value in dispute exceeds $20, and no fact deter- 
mined by a jury shall be re-examined otherwise than by the 
rules of the common law. 1 

V. The prohibitions imposed on the States are contained 
in Art. i. § 10, and in the three latest amendments. They are 
intended to secure the National government against attempts 
by the States to trespass on its domain, and to protect in- 
dividuals against oppressive legislation. 

No State shall — Make any treaty or alliance : coin money : 
make anything but gold and silver coin a legal tender : pass 
any bill of attainder, ex post facto law, or law impairing the 
obligation of contracts : grant any titles of nobility. 

No State shall without the consent of Congress — Lay 
duties on exports or imports (the produce of such, if laid, 
going to the national treasury) : keep troops or ships of war 
in peace time : enter into an agreement with another State 
or with any foreign power: engage in war, unless actually 
invaded or in imminent danger. 

Every State must — Give credit to the records and judicial 
proceedings of every other State : extend the privileges and 
immunities of citizens to the citizens of other States : deliver 
up fugitives from justice to the State entitled to claim them. 

No State shall have any but a republican form of govern- 
ment. 

No State shall — Maintain slavery : abridge the privileges 
of any citizen of the United States, or deny to him the right 

1 Chiefly intended to prevent the methods of courts of equity from being 
applied in the Federal courts as against the findings of a jury. 



318 THE NATIONAL GOVERNMENT part i 

of voting, in respect of race, colour, or previous servitude : de- 
prive any person of life, liberty, or property without due process 
of law : deny to any person the equal protection of the laws. 

Note that this list contains no prohibition to a State to do 
any of the following things : — Establish a particular form of 
religion : endow a particular form of religion, or educational or 
charitable establishments conuected therewith: abolish trial 
by jury in criminal or civil cases : suppress the freedom of 
speaking, writing, and meeting (provided that this be done 
equally as between different classes of citizens, and provided 
also that it be not done to such an extent as to amount to a 
deprivation of liberty without due process of law) : limit the 
electoral franchise to any extent : extend the electoral fran- 
chise to women, minors, aliens. 

These omissions are significant. They show that the framers 
of the Constitution had no wish to produce uniformity among 
the States in government or institutions, and little care to pro- 
tect the citizens against abuses of State power. 1 They were 
content to trust for this to the provisions of the State consti- 
tutions. Their chief aim was to secure the National govern- 
ment against encroachments on the part of the States, and to 
prevent causes of quarrel both between the central and State 
authorities and between the several States. The result has, 
on the whole, justified their action. So far from abusing their 
power of making themselves unlike one another, the States 
have tended to be too uniform, and have made fewer experi- 
ments in institutions than one could wish. 

VI. The powers vested in each State are all of them original 
and inherent powers, which belonged to the State before it 
entered the Union. Hence they are prima facie unlimited, and 
if a question arises as to any particular power, it is presumed 
to be enjoyed by the State, unless it can be shown to have been 
taken away by the Federal Constitution: or. in other words, a 
State is not deemed to be Bubject to any restriction which the 
Constitution has not distinctly imposed. 

The powers granted to the National government are dele- 
gated powers, enumerated in aiul defined by the instrument 

l The fourteenth and fifteenth amendments are in this respect b novelty. 
The only restrictions of tins kind to be found in the Instrument of 1788 are 
those relating to oontraota and ex pottfacto laws. 



chap, xxvn THE FEDERAL SYSTEM 319 

which has created the Union. Hence the rule that when a 
question arises whether the National government possesses a 
particular power, proof must be given that the power was pos- 
itively granted. If not granted, it is not possessed, because 
the Union is an artificial creation, whose government can have 
nothing but what the people have by the Constitution conferred. 
The presumption is therefore against the National govern- 
ment in such a case, just as it is for the State in a like case. 1 

VII. The authority of the National government over the 
citizens of every State is direct and immediate, not exerted 
through the State organization, and not requiring the co-opera- 
tion of the State government. For most purposes the National 
government ignores the States ; and it treats the citizens of 
different States as being simply its own citizens, equally bound 
by its laws. The Federal courts, revenue officers, and post- 
office draw no help from any State officials, but depend directly 
on Washington. Hence, too, of course, there is no local self- 
government in Federal matters. No Federal official is elected 
by the people of any local area. Local government is purely 
a State affair. 

On the other hand, the State in no wise depends on the 
National government for its organization or its effective work- 
ing. It is the creation of its own inhabitants. They have 
given it its constitution. They administer its government. It 
goes on its own way, touching the National government at but 
few points. That the two should touch at the fewest possible 
points was the intent of those who framed the Federal Consti- 
tution, for they saw that the less contact, the less danger of 
collision. Their aim was to keep the two mechanisms as dis- 
tinct and independent of each other as was compatible with 
the still higher need of subordinating, for national purposes, 
the State to the Central government. 2 

1 Congress must not attempt to interfere with the so-called "police power " 
of the States within their own limits. So when a statute of Congress had 
made it punishable to sell certain illuminating fluids inflammable at less than 
a certain specified temperature, it was held that this statute could not operate 
within a State, but only in the District of Columbia and the Territories, and a 
person convicted under it in Detroit was discharged {United States v. Be Witt, 
9 Wall. 41). 

2 For a comparison of the Federal system of the United States with the Fed- 
eral system of the two ancient English Universities, see note to this chapter 
printed at the end of the volume. 



320 THE NATIONAL GOVERNMENT part i 

VIII. It is a further consequence of this principle that the 
National government has but little to do with the States as 
States. Its relations are with their citizens, who are also its 
citizens, rather than with them as ruling commonwealths. In 
the following points, however, the Constitution does require 
certain services of the States : — 

It requires each State government to direct the choice of, 
and accredit to the seat of the National government, two 
senators and so many representatives as the State is entitled 
to send. 

It requires similarly that presidential electors be chosen, 
meet, and vote in the States, and that their votes be trans- 
mitted to the national capital. 

It requires each State to organize and arm its militia, which, 
when duly summoned for active service, are placed under the 
command of the President. 

It requires each State to maintain a republican form of 
government. (Conversely, a State may require the National 
government to protect it against invasion or domestic vio- 
lence.) 

Note in particular that the National government does not 
as in some other federations — 

Call upon the States, as commonwealths, to contribute funds 
to its support : 

Issue (save in so far as may be needed in order to secure £ 
republican form of government) administrative orders to the 
States, directing their authorities to carry out its laws or com- 
mands : 

Require the States to submit their laws to it, and veto such 
as it disapproves. 

The first two things it is not necessary for the National 
government to do, because it levies its taxes directly by its 
own collectors, and enforces its laws, commands, and judicial 
decrees by the hands of its own servants. The last can be 
dispensed with because the State laws are ipso jure invalid, if 
they conflict with the Constitution or any treaty or law duly 
made under it (Art. vi. § 2), while if they do not so conflict 
they are valid, any act of the National government notwith- 
standing. 

Neither does the National government allow its structure to 



chap, xxvn THE FEDERAL SYSTEM 321 

be dependent on the action of the States. "To make it impos- 
sible for a State or group of States to jeopard by inaction or 
hostile action the existence of the central government," was 
a prime object with the men of 1787, and has greatly contrib- 
uted to the solidity of the fabric they reared. The de facto 
secession of eleven States in 1860-61 interfered with the regu- 
lar legal conduct neither of the presidential election of 1864 
nor of the congressional elections from 1861 to 1865. Those 
States were not represented in Congress ; but Congress itself 
went on diminished in numbers yet with its full legal powers, 
as the British Parliament would go on though all the peers 
and representatives from Scotland might be absent. 

IX. A State is, within its proper sphere, just as legally 
supreme, just as well entitled to give effect to its own will, as 
is the National government within its sphere ; and for the 
same reason. All authority flows from the people. The peo- 
ple have given part of their supreme authority to the National, 
part to the State governments. Both hold by the same title, 
and therefore the National government, although superior 
wherever there is a concurrence of powers, has no more right 
to trespass upon the domain of a State than a State has upon 
the domain of Federal action. That the course which a State 
is following is pernicious, that its motives are bad and its sen- 
timents disloyal to the Union, makes no difference until or 
unless it infringes on the sphere of Federal authority. It may 
be thought that however distinctly this may have been laid 
down as a matter of theory, in practice the State will not 
obtain the same justice as the National government, because the 
court which decides points of law in dispute between the two 
is in the last resort a Federal court, and therefore biassed in 
favour of the Federal government. In fact, however, little or 
no unfairness has arisen from this cause. 1 The Supreme court 
may, as happened for twenty years before the War of Seces- 
sion, be chiefly composed of States' Eights men. In any case 

1 " Whatever fluctuations may be seen in the history of public opinion during 
the period of our national existence, we think it will be found that the Supreme 
court, so far as its functions required, has always held with a steady and even 
hand the balance between State and Federal power, and we trust that such may 
continue to be the history of its relation to that subject so long as it shall have 
duties to perform which demand of it a construction of the Constitution." — 
Judgment of the Supreme court in The Slaughter House Cases, 16 Wall. 82. 
VOL. I Y 



322 THE NATIONAL GOVERNMENT part i 

the court cannot stray far from the path which previous de- 
cisions have marked out. 

X. There are several remarkable omissions in the constitu- 
tion of the American federation. 

One is that there is no grant of power to the National gov- 
ernment to coerce a recalcitrant or rebellious State. Another 
is that nothing is said as to the right of secession. Any one 
can understand why this right should not have been granted. 
But neither is it mentioned to be negatived. 

The Constitution was an instrument of compromises ; and 
these were questions which it would have been unwise to 
raise. 

There is no abstract or theoretic declaration regarding the 
nature of the federation and its government, nothing as to the 
ultimate supremacy of the central authority outside the partic- 
ular sphere allotted to it, nothing as to the so-called sovereign 
rights of the States. As if with a prescience of the dangers 
to follow, the wise men of 1787 resolved to give no opening 
for abstract inquiry and metaphysical dialectic. But in vain. 
The human mind is not to be so restrained. If the New Tes- 
tament had consisted of no other writings than the Gospel of 
St. Matthew and the Epistle of St. James, there would have 
been scarcely the less a crop of speculative theology. The 
drily legal and practical character of the Constitution did not 
prevent the growth of a mass of subtle and, so to speak, scho- 
lastic metaphysics regarding the nature of the government it 
created. The inextricable knots which American lawyers and 
publicists went on tying, down till 1861, were cut by the sword 
of the North in the Civil War, and need concern us no longer. 
It is now admitted that the Union is not a mere compact be- 
tween commonwealths, dissoluble at pleasure, but an instru- 
ment of perpetual efficacy, 1 emanating from the whole people, 

1 This view received judicial sanction in the famous case of Tc.r,i$ v. White 
(7 Wall. 700), decided by the Supreme court after the war. It is there said by 
Chief-Justice Chase. "The (JuioD of the States never was a purely artificial 
and arbitrary relation. ... It received definite form and character and sanc- 
tion by the Articles of Confederation. By these the Union was solemnly de- 
clared to be 'perpetual.' And when these articles were found to he inadequate 
to the exigencies of the country, the Constitution was ordained ' to form a more 
perfect Union. 1 [1 is difficull to convey the idea of indissoluble unity more 
clearly than by these words. Wha1 can be indissoluble if a perpetual union. 
made more perfect, is not '.' But the perpetuity and indissolubility of the Union 



chap, xxvn THE FEDERAL SYSTEM 323 

and alterable by them only in the manner which its own terms 
prescribe. It is "an indestructible Union of indestructible 
States." 

It follows from the recognition of the indestructibility of the 
Union that there must somewhere exist a force capable of pre- 
serving it. The National government is now admitted to be 
such a force. " It can exercise all powers essential to preserve 
and protect its own existence and that of the States, and the 
constitutional relation of the States to itself, and to one 
another." 1 

"May it not," some one will ask, "abuse these powers, abuse 
them so as to extinguish the States themselves, and turn the 

by no means implies the loss of distinct and individual existence, or of the 
right of self-government by the States. ... It may be not unreasonably said 
that the preservation of the States and the maintenance of their governments 
are as much within the design and care of the Constitution as the preserva- 
tion of the Union and the maintenance of the national government. The 
Constitution, in all its provisions, looks to an indestructible Union composed 
of indestructible States. When, therefore, Texas became one of the United 
States she entered into an indissoluble relation. . . . There was no place for 
reconsideration or revocation except through revolution or through consent of 
the States. Considered therefore as transactions under the Constitution, the 
ordinance of secession adopted by the Convention, and ratified by a majority 
of the citizens of Texas, was absolutely null and utterly without operation in 
law. The obligations of the State as a member of the Union, and of every 
citizen of the State as a citizen of the United States, remained perfect and 
unimpaired." The State did not cease to be a State, nor her citizens to be citi- 
zens of the Union. See also the cases of White v. Hart (13 Wall. 646) and 
Keith v. Clark (97 U. S. 451). 

As respects the argument that the Union established by the Constitution of 
1789 must be perpetual, because it is declared to have been designed to make a 
previous perpetual Union more perfect, it may be remarked, as matter of his- 
tory, that this previous Union (that resting on the Articles of Confederation) 
had not proved perpetual, but was in fact put an end to by the acceptance in 
1788 of the new Constitution by the nine States who first ratified that instru- 
ment. After that ratification the Confederation was dead, and the States of 
North Carolina and Rhode Island, which for some months refused to come into 
the new Union, were clearly out of the old one, and, de jure if not de facto, stood 
alone in the world. May it not then be said that those who destroyed a Union 
purporting to be perpetual were thereafter estopped from holding it to have been 
perpetual, and from founding on the word "perpetual" an argument against 
those who tried to upset the new Union in 1861, as the old one had been upset 
in 1788? The answer to this way of putting the point seems to be to admit 
that the proceedings of 1788 were in fact revolutionary. In ratifying their new 
Constitution in that year, the nine States broke through and flung away their, 
previous compact which purported to have been made for ever. But they did 
so for the sake of forming a better and more enduring compact, and their 
extra-legal action was amply justified by the necessities of the case. 

1 Venable, ut supra. 



324 THE NATIONAL GOVERNMENT tart i 

federation into a unified government? What is there but the 
Federal judiciary to prevent this catastrophe ? and the Federal 
judiciary has only moral and not also physical force at its 
command." 

No doubt it may, but not until public opinion supports it in 
so doing — that is to say, not until the mass of the nation which 
now maintains, because it values, the Federal system, is pos- 
sessed by a desire to overthrow that system. Such a desire 
may express itself in proper legal form by carrying amend- 
ments to the Constitution which will entirely change the 
nature of the government. Or if the minority be numerous 
enough to prevent the passing of such amendments, and if the 
desire of the majority be sufficiently vehement, the majority 
which sways the National government may disregard legal 
sanctions and effect its object b}^ a revolution. In either event 
— and both are improbable — the change which will have passed 
upon the sentiments of the American people will be a sign that 
Federalism has done its work, and that the time has arrived 
for new forms of political life. 



CHAPTER XXVIII 

WORKING RELATIONS OF THE NATIONAL AND THE STATE 
GOVERNMENTS 

The characteristic feature and special interest of the Amer- 
ican Union is that it shows ns two governments covering the 
same ground, yet distinct and separate in their action. It is 
like a great factory wherein two sets of machinery are at work, 
their revolving wheels apparently intermixed, their bands 
crossing one another, yet each set doing its own work with- 
out touching or hampering the other. To keep the National 
government and the State governments each in the allotted 
sphere, preventing collision and friction between them, was 
the primary aim of those who formed the Constitution, a task 
the more needful and the more delicate because the States had 
been until then almost independent and therefore jealous of 
their privileges, and because, if friction should arise, the 
National government could not remove it by correcting defects 
in the machinery. For the National government, being itself 
the creature of the Constitution, was not permitted to amend 
the Constitution, but could only refer it back for amendment 
to the people of the States or to their legislatures. Hence the 
men of 1787, feeling the cardinal importance of anticipating 
and avoiding occasions of collision, sought to accomplish their 
object by the concurrent application of two devices. One was 
to restrict the functions of the National government to the 
irreducible minimum of functions absolutely needed for the 
national welfare, so that everything else should be left to 
the States. The other was to give that government, so far as 
those functions extended, a direct and immediate relation to 
the citizens, so that it should act on them not through the 
States but of its own authority and by its own officers. These 
are fundamental principles whose soundness experience has 



326 THE NATIONAL GOVERNMENT part i 

approved, and which will deserve to be considered by those 
who in time to come may have in other countries to frame 
federal or quasi-federal constitutions. They were studied, and 
to a large extent, though in no slavish spirit, adopted by the 
founders of the present constitution of the Swiss Confedera- 
tion, a constitution whose success bears further witness to the 
soundness of the American doctrines. 

The working relations of the National government to the 
States may be considered under two heads, viz. its relations 
to the States as communities, and its relations to the citizens 
of the States as individuals, they being also citizens of the 
Union. 

The National government touches the States as corporate 
commonwealths in three points. One is their function in 
helping to form the National government ; another is the 
control exercised over them by the Federal Constitution through 
the Federal courts ; the third is the control exercised over 
them by the Federal Legislature and Executive in the dis- 
charge of the governing functions which these latter authori- 
ties possess. 

I. The States serve to form the National government by 
choosing presidential electors, by choosing senators, and by 
fixing the franchise which qualifies citizens to vote for mem- 
bers of the House of Representatives. 1 No difficulty has ever 
arisen (except during the Civil War) from any unwillingness 
of the States to discharge these duties, for each State is eager 
to exercise as much influence as it can on the national execu- 
tive and Congress. But note how much latitude has been left 
to the States. A State may appoint its presidential electors 
in any way it pleases. All States now do appoint them In- 
popular vote. But during the first thirty years of the Union 
many States left the choice of electors to their respective legis- 
latures. So a State may, by its power oi' prescribing the fran- 
chise for its State elections, prescribe whatever franchise it 
pleases for the election of its members of the Federal House 
of Representatives, and may thus admit persons who would in 
other States be excluded from the suffrage, or exclude persons 

1 Congress may regulate i>\ statute the times, places, and manner of holding 
elections for representatives (Const., An. i. § n. and has done so to some 
extent. 



chap, xxvin WORKING OF THE FEDERAL SYSTEM 327 

who would in other States be admitted. For instance, fifteen 
States now allow aliens (i.e. foreigners not yet naturalized) to 
vote ; and any State which should admit women to vote at its 
own State elections (as Wyoming now does) would thereby 
admit them also to vote at congressional elections. 1 The only 
restriction imposed on State discretion in this respect is that 
of the fifteenth amendment, which forbids any person to be 
deprived of suffrage, on " account of race, colour, or previous 
condition of servitude." 2 

II. The Federal Constitution deprives the States of certain 
powers they would otherwise enjoy. Some of these, such as 
that of making treaties, are obviously unpermissible, and such 
as the State need not regret. 3 Others, however, seriously re- 
strain their daily action. They are liable to be sued in the 
Federal courts by another State or by a foreign Power. They 
cannot, except with the consent of Congress, tax exports or 
imports, or in any case pass a law impairing the obligation of a 
contract. They must surrender fugitives from the justice of 
any other State. Whether they have transgressed any of these 
restrictions is a question for the courts of law, and, if not in 
the first instance, yet always in the last resort a question for the 
Federal Supreme court. If it is decided that they have trans- 
gressed, their act, be it legislative or executive, is null and void. 4 

1 So in some States tribal Indians are permitted to vote. It is odd that the 
votes of persons who are not citizens of the United States might, in a State 
where parties are nearly equal, turn the choice of presidential electors in that 
State, and thereby perhaps turn the presidential election in the Union. 

2 The Constitutions of some States retain the old exclusion of negroes from 
the suffrage, and three exclude natives of China; but these provisions are 
overridden by the fifteenth constitutional amendment. 

3 As the States had not been accustomed to act as sovereign commonwealths 
in international affairs, they yielded this right to the National government 
without demur ; whereas Swiss history shows the larger cantons to have been 
unwilling to drop the practice of sending their own envoys to foreign powers 
and making bargains on their own behalf. 

4 Mr. Justice Miller observes (Centennial Address at Philadelphia) that " at 
no time since the formation of the Union has there been a period when there 
were not to be found on the statute books of some of the States acts passed in 
violation of the provisions of the Constitution regarding commerce, acts im- 
posing taxes and other burdens upon the free interchange of commodities, 
discriminating against the productions of other States, and attempting to estab- 
lish regulations of commerce, which the Constitution says shall only be done by 
Congress." All such acts are of course held invalid by the courts when ques- 
tioned before them. 

It has very recently been held that a State cannot forbid a common carrier 



328 THE NATIONAL GOVERNMENT part i 

The President as national executive, and Congress as national 
legislature, have also received from the Constitution the right 
of interfering in certain specified matters with the govern- 
ments of the States. Congress of course does this by way of 
legislation, and when an Act of Congress, made within the 
powers conferred by the Constitution, conflicts with a State 
statute, the former prevails against the latter. It prevails by 
making the latter null and void, so that if a State statute has 
been duly passed upon a matter not forbidden to a State by 
the Constitution, and subsequently Congress passes an act on 
the same matter, being one whereon Congress has received the 
right to legislate, the State statute, which was previously 
valid, now becomes invalid to the extent to which it conflicts 
with the Act of Congress. For instance, Congress has power 
to establish a uniform law of bankruptcy over the whole Union. 
It has formerly, in the exercise of this power, passed bank- 
ruptcy laws ; but these have been repealed, and at present 
the subject is left to the State laws, which are accordingly in 
full force in the several States. 1 Were Congress again to 
legislate on the subject, these State laws would lose their 
force ; 2 and if the law passed by Congress were again repealed, 
they would again spring into life. The field of this so-called 
concurrent legislation is large, for Congress has not yet exer- 
cised all the powers vested in it of superseding State action. 

It was remarked in the last chapter that in determining the 
powers of Congress on the one hand and of a State government 
on the other, opposite methods have to be followed. The pre- 
sumption is always in favour of the State ; and in order to 
show that it cannot legislate on a subject, there must be 
pointed out within the four corners of the Constitution some 
express prohibition of the right which it prima fade possesses, 
or some implied prohibition arising from the fact that legisla- 
tion by it would conflict with legitimate federal authority. 3 

to bring into its jurisdiction intoxicating liquors from another State {Bowman 
v. C. & N. W. Rly. 125 U. S., p. 466) ; cf. Leisy \ . Hardin, 135 U. S., p. 100 ; 
Minnesota v. Barber, 136 U. S., p. 313. 

1 See the interesting case of Sturges v. Crowninshield, 4 Wheat. 190. 

2 And in this instance they would lose their force 'altogether, because the 
power of Congress being to establish a "uniform" law, the continued exist- 
ence of statutes differing in the different States would prevent the law of 
bankruptcy from being uniform over the Union. 

•''Otherwise in the Federal Constitution of Canada. See Note to Chapter 
XXX. 



chap, xxvm WORKING OF THE FEDERAL SYSTEM 329 

On the other hand, the presumption is always against Con- 
gress, and to show that it can legislate, some positive grant of 
power to Congress in the Constitution must be pointed out. 1 
When the grant is shown, then the Act of Congress has, so 
long as it remains on the statute book, all the force of the 
Constitution itself. In some instances the grant of power to 
Congress to legislate is auxiliary to a prohibition imposed on 
the States. This is notably the case as regards the amend- 
ments to the Constitution, passed for the protection of the 
lately liberated negroes. They interdict the States from either 
recognizing slavery, or discriminating in any way against any 
class of citizens ; they go even beyond citizens in their care, 
and declare that " no State shall deny to any person within its 
jurisdiction the equal protection of the laws." Now, by each 
of these amendments, Congress is also empowered, which 
practically means enjoined, to "enforce by appropriate legis- 
lation " the prohibitions laid upon the States. Congress has 
done so, but some of its efforts have been held to go beyond 
the directions of the amendments, and to be therefore void. 2 
The grant of power has not covered them. 

Where the President interferes with a State, he does so either 
under his duty to give effect to the legislation of Congress, or 
under the discretionary executive functions which the Consti- 
tution has entrusted to him. So if any State were to depart 
from a republican form of government, it would be his duty 
to bring the fact to the notice of Congress in order that the 
guarantee of that form contained in the Constitution might be 
made effective. If an insurrection broke out against the 
authority of the Union, he would (as in 1861) send Federal 
troops to suppress it. If there should be rival State govern- 
ments, each claiming to be legitimate, the President might, 
especially if Congress were not sitting, recognize and support 
the one which he deemed regular and constitutional. 3 

1 The grant need not, however, be express, for it has frequently been held 
that a power incidental or instrumental to a power expressly given may be con- 
ferred upon Congress by necessary implication. See M'Culloch v. Maryland, 
4 Wheat, p. 316, and post, Chapter XXXIII. 

2 See the Appendix to the last edition of Story's Commentaries, and Desty's 
Constitution of the United States Annotated. 

3 In 1874-75 a contest having arisen in Louisiana between two governments 
each claiming to be the legal government of the State, Federal military aid 
was supplied to one of them by the President, and his action was afterwards 



330 THE NATIONAL GOVERNMENT part i 

Are these, it may be asked, the only cases in which Federal 
authority can interfere within the limits of a State to maintain 
order ? Are law and order, i.e. the punishment of crimes and 
the enforcement of civil rights, left entirely to State authori- 
ties ? The answer is : — 

Offences against Federal statutes are justiciable in Federal 
courts, and punishable under Federal authority. There is no 
Federal common law of crimes. 

Resistance offered to the enforcement of a Federal statute 
may be suppressed by Federal authority. 

Attacks on the property of the Federal government may be 
repelled, and disturbances thence arising may be quelled by 
Federal authority. 

The judgments pronounced in civil causes by Federal courts 
are executed by the officers of these courts. 

All other offences and disorders whatsoever are left to be 
dealt with by the duly constituted authorities of the State, 
who are, however, entitled in one case to summon the power of 
the Union to their aid. 

This case is that of the breaking out in a State of serious 
disturbances. The President is bound on the application of 
the State legislature or executive to quell such disturbances 
by the armed forces of the Union, or by directing the militia 
of another State to enter. Thus in 1794 Washington sup- 
pressed the so-called Whisky Insurrection in Pennsylvania 
by the militia of Pennsylvania, New Jersey, Virginia, and 
Maryland. 1 President Grant was obliged to use military force 
during the troubles which disturbed several of the Southern 
States after the Civil War; as was President Ha}-es, during 
the tumults in Pennsylvania caused by the groat railway 
strikes of 1877. There have, however, been cases, such as the 
Dorr rebellion in Rhode Island in 1842, 2 in which a State has 

approved by Congress. It lias been doubted, however, whether the case could 
properly be deemed one of "domestic violence "within the meaning of Art. iv 
§ 4 of the Constitution. 

1 This was the oral assertion by arms of the supreme authority of the Union, 
and produced an enormous elTeet upon opinion. 

2 President Tyler ordered the militia of Connecticut and Massachusetts to 
lie prepared (in case a requisition came from the K. l. executive) to guard the 

frontier of Rhode Island against Insurgents attempting to enter, and himself 
took steps for sending in (in ease of need) V . S. regular troops, but the Rhode 
Island militia proved equal to the Occasion ami BUOCeeded in suppressing Dorr. 



chap, xxvin WORKING OF THE FEDERAL SYSTEM 331 

itself suppressed an insurrection against its legitimate govern- 
ment. It is the duty of a State to do so if it can, and to seek 
Federal aid only in extreme cases, when resistance is formida- 
ble. 

So far we have been considering the relations of the Na- 
tional government to the States as political communities. Let 
us now see what are its relations to the individual citizens of 
these States. They are citizens of the Union as well as of 
these States, and owe allegiance to both powers. Each power 
has a right to command their obedience. To which then, in 
case of conflict, is obedience due ? 

The right of the State to obedience is wider in the area of 
matters which it covers. Prima facie, every State law, every 
order of a competent State authority, binds the citizen, 
whereas the National government has but a limited power : it 
can legislate or command only for certain purposes or on cer- 
tain subjects. But within the limits of its power, its authority 
is higher than that of the State, and must be obeyed even at 
the risk of disobeying the State. A recent instance in which 
a State official suffered for obeying his State where its direc- 
tions clashed with a provision of the Federal Constitution may 
set the point in a clear light. A statute of California had 
committed to the city and county authority of San Francisco 
the power of making regulations for the management of gaols. 
This authority had in 1876 passed an ordinance directing that 
every male imprisoned in the county gaol should "immediately 
on his arrival have his hair clipped to a uniform length of one 
inch from the scalp." The sheriff having, under this ordi- 
nance, cut off the queue of a Chinese prisoner, Ho Ah Kow, 
was sued for damages by the prisoner, and the court, holding 
that the ordinance had been passed with a special view to the 
injury of the Chinese, who consider the preservation of their 
queue a matter of religion as well as of honour, and that it 
operated unequally and oppressively upon them, in contraven- 
tion of the fourteenth amendment to the Constitution of the 
United States, declared the ordinance invalid, and gave judg- 
ment against the sheriff. 1 Similar subsequent attempts against 

1 Case of Ho Ah Kow v. Matthew Nunan (July 1879), 5 Sawyer, Circuit 
Court Reports, p. 552. A similar ordinance had been some years before cou- 
rageously vetoed by Mr. Alvord, then mayor of San Francisco. 



332 THE NATIONAL GOVERNMENT part i 

the Chinese, made under cover of the constitution of California 
of 1879 and divers statutes passed thereunder, have been 
defeated by the courts. 

The safe rule for the private citizen may be thus expressed : 
" Ascertain whether the Federal law is constitutional (i.e. such 
as Congress has power to pass). If it is, conform your conduct 
to it at all hazards. If it is not, disregard it, and obey the 
law of your State." This may seem hard on the private citi- 
zen. How shall he settle for himself such a delicate point of 
law as whether Congress had power to pass a particular stat- 
ute, seeing that the question may be doubtful and not have 
come before the courts ? But in practice little inconvenience 
arises, for Congress and the State legislatures have learnt to 
keep within their respective spheres, and the questions that 
arise between them are seldom such as need disturb an ordi- 
nary man. 

The same remarks apply to conflicts between the commands 
of executive officers of the National government on the one 
hand, and those of State officials on the other. If the national 
officer is acting within his constitutional powers, he is entitled 
to be obeyed in preference to a State official, and conversely, if 
the State official is within his powers, and the national officer 
acting in excess of those which the Federal Constitution con- 
fers, the State official is to be obeyed. 

The limits of judicial power are more difficult of definition. 
Every citizen can sue and be sued or indicted both in the courts 
of his State and in the Federal courts, but in some classes of 
cases the former, in others the latter, is the proper tribunal, 
while in many it is left to the choice of the parties before 
which tribunal they will proceed. Sometimes a plaintiff who 
has brought his action in a State court finds when the east 1 has 
gone a certain length that a point of Federal law turns up 
which entitles either himself or the defendant to transfer it to 
a Federal court, or to appeal to such a court should the decision 
have gone against the applicability of the Federal law. Suits 
are thus constantly transferred from State courts to Federal 
courts, but no one can ever reverse the process and carry a 
suit from a Federal court to a State court. Within its proper 
sphere of pure State law, — and of course the great bulk of the 
cases turn on pure State law, — there is no appeal from a State 



chap, xxviii WORKING OF THE FEDERAL SYSTEM 333 



court to a Federal court ; and though the point of law on which 
the case turns may be one which has arisen and been decided 
in the Supreme court of the Union, a State judge, in a State 
case, is not bound to regard that decision. It has only a moral 
weight, such as might be given to the decision of an English 
court, and where the question is one of State law, whether 
common law or statute law, in which State courts have decided 
one way and a Federal court the other way, the State judge 
ought to follow his own courts. So far does this go, that a 
Federal court in administering State law, ought to reverse its 
own previous decision rather than depart from the view which 
the highest State court has taken. 1 All this seems extremely 
complex. I can only say that it is less troublesome in practice 
than could have been expected, because American lawyers are 
accustomed to the intricacies of their system. 

When a plaintiff has the choice of proceeding in a State 
court or in a Federal court, he is sometimes, especially if he 
has a strong case, inclined to select the latter, because the Fed- 
eral judges are more independent than those of most of the 
States, and less likely to be influenced by any bias. So, too, 
if he thinks that local prejudice may tell against him, he will 
prefer a Federal court, -because the jurors are summoned from 
a wider area, and because the judges are accustomed to exert a 
larger authority in guiding and controlling the jury. But it is 
usually more convenient to sue in a State court, seeing that 
there is such a court in every county, whereas Federal courts 
are comparatively few ; in many States there is but one. 2 

The Federal authority, be it executive or judicial, acts upon 
the citizens of a State directly by means of its own officers, 
who are quite distinct from and independent of the State offi- 
cials. Federal indirect taxes, for instance, are levied all along 
the coast and over the country by Federal custom-house col- 
lectors and excisemen, acting under the orders of the treasury 

1 This is especially the rule in cases involving the title to land. But though 
the theory is as stated in the text, the Federal courts not unf requently (espe- 
cially in commercial cases) , act upon their own view of the State law, and have 
sometimes heen accused of going so far as to create a sort of Federal common 
law. 

2 Of course a plaintiff who thinks local prejudice will hefriend him will 
choose the State court, hut the defendant may have the cause removed to a 
Federal court if he be a citizen of another State or an alien, or if the question 
at issue is such as to give Federal jurisdiction. 



334 THE NATIONAL GOVERNMENT pabt i 

department at Washington. The judgments of Federal courts 
are carried out by United States marshals, likewise dispersed 
over the country and supplied with a staff of assistants. This 
is a provision of the utmost importance, for it enables the cen- 
tral National government to keep its finger upon the people 
everywhere, and make its laws and the commands of its duly 
constituted authorities respected whether the State within 
whose territory it acts be heartily loyal or not, and whether 
the law which is being enforced be popular or obnoxious. The 
machinery of the National government ramifies over the whole 
Union as the nerves do over the human body, placing every 
point in direct connection with the central executive. The 
same is, of course, true of the army : but the army is so small 
and stationed in so few spots, mostly in the Far West where 
Indian raids are feared, that it scarcely comes into a view of 
the ordinary working of the system. 

What happens if the authority of the National government 
is opposed, if, for instance, an execution levied in pursuance 
of a judgment of a Federal court is resisted, or Federal excise- 
men are impeded in the seizure of an illicit distillery ? 

Supposing the United States marshal or other Federal 
officer to be unable to overcome the physical force opposed 
to him, he may summon all good citizens to assist him, just 
as the sheriff may summon the 2 losse comitatus. If this 
appeal proves insufficient, he must call upon the President, 
who may either order national troops to his aid or may 
require the militia of the State in which resistance is offered 
to overcome that resistance. [nferior Federal officers are 
not entitled to make requisitions for State force. The com- 
mon law principle that all citizens arc bound to assist the 
ministers of the law holds good in A.merica as in England, but 
it is as true in the one country as in the other, that what is 
everybody's business is nobody's business. Practically, the 
Federal authorities arc not resisted in the more orderly 
States and more civilized districts. In such regions, however, 
as the mountains of Tennessee, Eastern Kentucky, and North 
Carolina the inland revenue officials find it very hard to en- 
force the excise laws, because the country is wild, conceal- 
ment is easy among the woods and rocks, and the population 
sides with the smugglers. And in some oi' the western States 



chap, xxviii WORKING OF THE FEDERAL SYSTEM 335 

an injunction granted by a court, whether a Federal or a State 
court, is occasionally disregarded. 1 Things were, of course, 
much worse before the War of Secession had established the 
authority of the central government on an immovable basis. 
Federal law did not prove an unquestioned protection either to 
persons who became in some districts unpopular from preaching 
Abolitionism, or to those Southern slave-catchers, who endea- 
voured, under the Fugitive Slave laws, to recapture in the 
northern States slaves who had escaped from their masters. 2 
Passion ran high, and great as is the respect for law, passion 
in America, as everywhere else in the world, will have its way. 

If the duly constituted authorities of a State resist the laws 
and orders of the National government, a more difficult ques- 
tion arises. This has several times happened. 

In November 1798 the legislature of Kentucky adopted 
resolutions declaring that the Constitution was not a sub- 
mission of the States to a general government, but a compact 
whereby they formed such a government for special purposes 
and delegated to it certain definite powers ; that when the 
general government assumed undelegated powers, its acts were 
unauthoritative and void ; and that it had not been made the 
exclusive or final judge of the extent of the powers delegated 
to it. Five weeks later the Virginia legislature passed 
similar but more guarded resolutions, omitting, inter alia, the 
last of the above mentioned deliverances of Kentucky. Both 
States went on to declare that the Sedition and Alien Acts 
recently passed by Congress were unconstitutional, and asked 
the other States to join in this pronouncement and to co-oper- 
ate in securing the repeal of the statutes. 3 Seven States 
answered, all in an adverse sense. 

1 The attacks upon the Chinese which Federal authorities have had to check 
have mostly taken place not in States but in Territories (such as Washington 
and Montana till recently were), where the direct power of the Federal Gov- 
ernment is greater than in a State. See Chapter XLVII. 

2 It was held that a State could not authorize its courts to enforce the Fugi- 
tive Slave laws. Being Federal statutes, their enforcement belonged to the 
National government only. Consider Prigg v. Pennsylvania, 16 Pet. 539. 

3 There have been endless discussions in America as to the true meaning and 
intent of these famous resolutions, a lucid account of which may be found in 
the article (by Mr. Alex. Johnston) " Kentucky Resolutions," in the American 
Cyclopaedia of Political Science. The Kentucky resolutions were drafted by 
Jefferson, who however did not acknowledge his authorship till 1821, the Vir- 
ginia resolutions by the more cautious Madison. Those who defend Jefferson's 



336 THE NATIONAL GOVERNMENT paw i 

In 1808 the legislatures of some of the New England States 
passed resolutions condemning the embargo which the National 
government had laid upon shipping by an Act of that year. 
The State judges, emboldened by these resolutions, took an 
attitude consistently hostile to the embargo, holding it to be 
unconstitutional; popular resistance broke out in some of 
the coast towns ; and the Federal courts in New England sel- 
dom succeeded in finding juries which would convict even 
for the most flagrant violation of its provisions. At the out- 
break of the war of 1812 the governors of Massachusetts and 
Connecticut refused to allow the State militia to leave their 
State in pursuance of a requisition made by the President 
under the authority of an Act of Congress, alleging the 
requisition to be unconstitutional ; and in October 1814 the 
legislatures of these two States and of Rhode Island, States 
in which the New England feeling against the war had risen 
high, sent delegates to a Convention at Hartford, which, after 
three weeks of secret session, issued a report declaring that "it 
is as much the duty of the State authorities to watch over the 
rights reserved as of the United States to exercise the powers 
delegated," laying down doctrines substantially similar to those 
of the Kentucky resolutions, and advising certain amend- 
ments to the Federal Constitution, with a menace as to fur- 
ther action in case these should be rejected. Massachusetts 
and Connecticut adopted the report; but before their com- 
missioners reached Washington, peace with Great Britain 
had been concluded. In 1828-30 Georgia refused to obey an 
Act of Congress regarding the Cherokee Indians, and to 
respect the treaties which the United States had made with 
that tribe and the Creeks. The Georgian legislature passed 
and enforced Acts in contempt of Federal authority, and 
disregarded the orders of the Supreme court, President dark- 
son, who had an old frontiersman's hatred to the Indians, 
declining to interfere. 

action argue, and probably rightly, that what he aimed at was not forcible 
resistance, bul the amendmenl of the Constitution so as to negative the con- 
struction thai was being put upon it by the Federalists. 

Judge Gooley observes to me, "The most authoritative exponents of the 
States' Bights creed would probably have said that ' the nullification by the 

States of all unauthorized acts done under cover of the Constitution ' intended 

by the Resolutions, was a nullification by constitutional means." 



chap, xxviii WORKING OF THE FEDERAL SYSTEM 337 

Finally, in 1832, South. Carolina, first in a State convention 
and then by her legislature, amplified while professing to repeat 
the claim of the Kentucky resolutions of 1798, declared the 
tariff imposed by Congress to be null and void as regarded her- 
self, and proceeded to prepare for secession and war. In none 
of these cases was the dispute fought out either in the courts or 
in the field 1 ; and the questions as to the right of a State to 
resist Federal authority, and as to the means whereby she could 
be coerced, were left over for future settlement. Settled they 
finally were by the Civil War of 1861-65, since which time the 
following doctrines may be deemed established : — 

No State has a right to declare an act of the Federal govern- 
ment invalid. 2 

No State has a right to secede from the Union. 

The only authority competent to decide finally on the con- 
stitutionality of an act of Congress or of the national executive 
is the Federal judiciary. 3 

Any act of a State legislature or a State executive conflicting 
with the Constitution, or with an act of the National govern- 
ment done under the Constitution, is really an act not of the 
State government, which cannot legally act against the Consti- 
tution, but of persons falsely assuming to act as such govern- 

1 The Acts complained of by Kentucky and Virginia provoked a reaction 
which led to the overthrow of the Federalist party which had passed them. 
Of the most important among them, one was repealed and the other, the Sedi- 
tion Act, expired in 1801 by effluxion of time. Jefferson, when he became 
President in that year, showed his disapproval of it by pardoning persons con- 
victed under it. The Embargo was raised by Congress in consequence of the 
strong opposition of New England. In these cases, therefore, it may be 
thought that the victory substantially remained with the protesting States, 
while the resistance of South Carolina to the tariff was settled by a com- 
promise. 

2 Of course, as already observed, a State officer or a private citizen may dis- 
regard an act of the Federal government if he holds it unconstitutional. But 
he does so at his peril. 

3 Any court, State or Federal, may decide on such a question in the first in- 
stance. But if the question be a purely political one, it may be incapable of 
being decided by any court whatever (see Chapter XXIV.), and in such cases 
the decision of the political departments (Congress or the President, as the 
case may be) of the Federal government is necessarily final, though, of course, 
liable to be reversed by a subsequent Congress or President. The cases which 
arose on the Reconstruction Acts, after the War of Secession, afford an illus- 
tration. The attempts made to bring these before the courts failed, and the 
acts were enforced. See Georgia v. Stanton, 6 Wall. p. 57. 

VOL. I Z 



338 THE NATIONAL GOVERNMENT part i 

ment, and is therefore ipso jure void. 1 Those who disobey 
Federal authority on the ground of the commands of a State 
authority are therefore insurgents against the Union who must 
be coerced by its power. The coercion of such insurgents is 
directed not against the State but against them as individual 
though combined wrongdoers. A State cannot secede and can- 
not rebel. Similarly, it cannot be coerced. 

This view of the matter, which seems on the whole to be that 
taken by the Supreme court in the cases that arose after the 
Civil War, disposes, as has been well observed by Judge Hare, 2 
of the difficulty which President Buchanan felt (see his mes- 
sage of 3d December 1860) as to the coercion of a State by the 
Union. He argued that because the Constitution did not pro- 
vide for such coercion, a proposal in the Convention of 1787 to 
authorize it having been ultimately dropped, it was legally 
impossible. The best answer to this contention is that such a 
provision would have been superfluous, because a State cannot 
legally act against the Constitution. All that is needed is the 
power, unquestionably contained in the Constitution (Art. iii. 
§ 3), to subdue and punish individuals guilty of treason against 
the Union. 3 

Except in the cases which have been already specified, the 
National government has no right whatever of interfering either 
with a State as a commonwealth or with the individual citizens 
thereof, and may be lawfully resisted should it attempt to do 
so. 

"What then?" the European reader may ask. ■• Is the 
National government without the power and the duty of correct- 
ing the social and political evils which it may find to exist in a 
particular State, and which a vast majority oi' the nation may 
condemn? Suppose widespread brigandage to exist in one of 

1 It may, however, happen thai a State law is unconstitutional in part only. 
perhaps in some trifling details, and in suchcasesthal part only will bo invalid. 
and the rest o( the law will be upheld. Tor instance, a criminal statute might 
i>c Framed so as to apply retrospectively as well as prospectively. Bo far as 
retrospective it would i>e bad. but good for all future cases. (See ('oust.. Art. 

i § 10, par. 1.) 

- American Constitutional Law, p. 61. 

;i Swiss practice allows the Federal government to coerce a disobedienl can- 
ton, rids is commonly done by quartering Federal troops in it at its expense 
till its government yields a form of coercion which Swiss frugality dislikes 

01 by Withholding its share Of Federal -rants. 



chap, xxvin WORKING OF THE FEDERAL SYSTEM 339 

the States, endangering life and property. Suppose contracts 
to be habitually broken, and no redress to be obtainable in the 
State courts. Suppose the police to be in league with the 
assassins. Suppose the most mischievous laws to be enacted, 
laws, for instance, which recognize polygamy, leave homicide 
unpunished, drive away capital by imposing upon it an intoler- 
able load of taxation. Is the nation obliged to stand by with 
folded arms while it sees a meritorious minority oppressed, the 
prosperity of the State ruined, a pernicious example set to other 
States ? Is it to be debarred from using its supreme author- 
ity to rectify these mischiefs ? " 

The answer is, Yes. Unless the legislation or administra- 
tion of such a State transgresses some provision of the Federal 
Constitution (such as that forbidding ex post facto laws, or laws 
impairing the obligation of a contract), the National govern- 
ment not only ought not to interfere but cannot interfere. The 
State must go its own way, with whatever injury to private 
rights and common interests its folly or perversity may cause. 

Such a case is not imaginary. In the Slave States before 
the war, although the negroes were not, as a rule, harshly 
treated, many shocking laws were passed, and society was 
going from bad to worse. In parts of a few of the western 
States at this moment, the roads and even the railways are 
infested by robbers, justice is uncertain and may be unattaina- 
ble when popular sentiment does not support the law. Homi- 
cide often goes unpunished by the courts, though sometimes 
punished by Judge Lynch. So, too, in a few of these States 
statutes opposed to sound principles of legislation have been 
passed, and have brought maDifold evils in their train. But 
the Federal government looks on unperturbed, with no remorse 
for neglected duty. 

The obvious explanation of this phenomenon is that the 
large measure of independence left to the States under the 
Federal system makes it necessary to tolerate their misdoings 
in some directions. As a distinguished authority 1 observes to 
me, " The Federal Constitution provided for the protection of 
contracts, and against those oppressions most likely to result 
from popular passion and demoralization ; and if it had been 
proposed to go further and give to the Federal authority a 
1 Judge Cooley. 



340 THE NATIONAL GOVERNMENT i-akt i 

power to intervene in still more extreme cases, the answer 
would probably have been that such cases were far less likely 
to arise than was the Federal power to intervene improperly 
under the pressure of party passion or policy, if its interven- 
tion were permitted. To have authorized such intervention 
would have been to run counter to the whole spirit of the 
Constitution, which kept steadily in view as the wisest policy 
local government for local affairs, general government for 
general affairs only. Evils would unquestionably arise. But 
the Philadelphia Convention believed that they would be kept 
at a minimum and most quickly cured by strict adherence to 
this policy. The scope for Federal interference was consider- 
ably enlarged after the Civil War, but the general division of 
authority between the States and the nation was not dis- 
turbed." 

So far from lamenting as a fault, though an unavoidable 
fault, of their Federal system, the State independence I have 
described, the Americans are inclined to praise it as a merit. 
They argue, not merely that the best way on the whole is to 
leave a State to itself, but that this is the only way in which 
a permanent cure of its diseases will be effected. They are 
consistent not only in their Federal principles but in- their 
democratic principles. " As laissez aller" they say, "is the 
necessary course in a Federal government, so it is the right 
course in all free governments. Law will never be strong or 
respected unless it has the sentiment of the people behind it. 
If the people of a State make bad laws, they will suffer for it. 
They will be the first to suffer. Let them suffer. Suffering, 
and nothing else, will implant that sense of responsibilitv 
which is the first step to reform. Therefore let them stew in 
their own juice: let them make their bed and lie upon it. If 
they drive capital a w;iv, there will be less work for the arti- 
sans: if they do not enforce contracts, trade will decline, and 
the evil will work out its remedy sooner or later. Perhaps it 
will be later rather than sooner: if so, the experience will be 
all the more conclusive. Is it said that the minority of wise 
and peaceable citizens may suffer? Let them exert them- 
selves to bring their fellows round to a better mind. Reason 
and experience will be on their Bide. We cannot be democrats 
by halves ; and where self-government is given, the majority 



chap, xxvm WOEKING OF THE FEDERAL SYSTEM 341 

of the community must rule. Its rule will in the end be 
better than that of any external power." No doctrine more 
completely pervades the American people, the instructed as 
well as the uninstructed. Philosophers will tell you that it is 
the method by which Nature governs, in whose economy error 
is followed by pain and suffering, whose laws carry their own 
sanction with them. Divines will tell you that it is the 
method by which God governs : God is a righteous Judge and 
God is provoked every day, yet He makes His sun to rise on 
the evil and the good, and sends His rain upon the just and 
the unjust. He does not directly intervene to punish faults, 
but leaves sin to bring its own appointed penalty. Statesmen 
will point to the troubles which followed the attempt to govern 
the reconquered seceding States, first by military force and 
then by keeping a great part of their population disfranchised, 
and will declare that such evils as still exist in the South are 
far less grave than those which the denial of ordinary self- 
government involved. "So," they pursue, "Texas and Cali- 
fornia will in time unlearn their bad habits and come out right 
if we leave them alone : Federal interference, even had we the 
machinery needed for prosecuting it, would check the natural 
process by which the better elements in these raw communi- 
ties are purging away the maladies of youth, and reaching the 
settled health of manhood." 

A European may say that there is a dangerous side to this 
application of democratic faith in local majorities and in 
laissez aller. Doubtless there is : yet those who have learnt to 
know the Americans will answer that no nation better under- 
stands its own business. 



CHAPTER XXIX 

CRITICISM OF THE FEDERAL SYSTEM 

All Americans have long been agreed that the only possible 
form of government for their country is a Federal one. All 
have perceived that a centralized system would be inexpedient, 
if not unworkable, over so large an area, and have still more 
strongly felt that to cut up the continent into absolutely inde- 
pendent States would not only involve risks of war but injure 
commerce and retard in a thousand ways the material develop- 
ment of every part of the country. But regarding the nature 
of the Federal tie that ought to exist there have been keen 
and frequent controversies, dormant at present, but which 
might break out afresh should there arise a new question of 
social or economic change capable of bringing the powers of 
Congress into collision with the wishes of any State of group 
of States. The general suitability to the country of a Federal 
system is therefore accepted, and need not be discussed. 1 pass 
to consider the strong and weak points of that which ex; 

The faults generally charged on federations as compared with 
unified governments arc the following: — 

I. Weakness in the conduct of foreign affairs. 

II. Weakness in home government, that is to say, deficient 
authority over the component States and the individual 
citizens. 

III. Liability to dissolution by the secession or rebellion of 
States. 

I V. Liability to division into groups and factions by the 
formation of separate combinations of the component states. 

V. Want of uniformity among the states in legislation and 
adminisl ration. 

VI. Trouble, expense, and delay due to the complexity of a 
double system of legislation and administration. 

342 



chap, xxix CRITICISM OF THE FEDERAL SYSTEM 343 

The first four of these are all due to the same cause, viz. the 
existence within one government, which ought to be able to 
speak and act in the name and with the united strength of the 
nation, of distinct centres of force, organized political bodies 
into which part of the nation's strength has flowed, and whose 
resistance to the will of the majority of the whole nation is 
likely to be more effective than could be the resistance of in- 
dividuals, because such bodies have each of them a government, 
a revenue, a militia, a local patriotism to unite them, whereas 
individual recalcitrants, however numerous, would be unor- 
ganized, and less likely to find a legal standing ground for 
opposition. The gravity of the first two of the four alleged 
faults has been exaggerated by most writers, who have assumed, 
on insufficient grounds, that Federal governments are neces- 
sarily weak. Let us, however, see how far America has ex- 
perienced such troubles from these features of a Federal system. 

I. In its early years, the Union was not successful in the man- 
agement of its foreign relations. Few popular governments 
are, because a successful foreign policy needs in a world such as 
ours conditions which popular governments seldom enjoy. In 
the days of Adams, Jefferson, and Madison, the Union put up 
with a great deal of ill-treatment from France as well as from 
England. It drifted rather than steered into the war of 1812. 
The conduct of that war was hampered by the opposition of the 
New England States. The Mexican war of 1846 was due to 
the slaveholders ; but as the combination among the Southern 
leaders which entrapped the nation into that conflict might 
have been equally successful in a unified country, the blame 
need not be laid at the door of Federalism. Of late years the 
principle of abstention from Old World complications has been 
so heartily and consistently adhered to that the capacities of 
the Federal system for the conduct of foreign affairs have been 
little tried ; and the likelihood of any danger from abroad is so 
slender that it may be practically ignored. But when a ques- 
tion of external policy arises which interests only one part of 
the Union, the existence of States feeling themselves specially 
affected is apt to have a strong and probably an unfortunate 
influence. Only in this way can the American government be 
deemed likely to suffer in its foreign relations from its Federal 
character. 



:;h THE NATIONAL GOVERNMENT part i 

II. For the purposes of domestic government the Federal 
authority is now, in ordinary times, sufficiently strong. How- 
ever, as was remarked in last chapter, there have been occa- 
sions when the resistance of even a single State disclosed its 
weakness. Had a man less vigorous than Jackson occupied 
the presidential chair in 1832, South Carolina would probably 
have prevailed against the Union. In the Kansas troubles of 
1855-56 the national executive played a sorry part; and even 
in the resolute hands of President Grant it was hampered in 
the re-establishment of order in the reconquered southern 
States by the rights which the Federal Constitution secured to 
those States. The only general conclusion on this point which 
can be drawn from history is that while the central govern- 
ment is likely to find less and less difficulty in enforcing its 
will against a State or disobedient subjects, because the pres- 
tige of its success in the Civil War lias strengthened it, and 
the facilities of communication make the raising and moving of 
troops more easy, nevertheless recalcitrant States, or groups of 
States, still enjoy certain advantages for resistance, advantages 
due partly to their legal position, partly to their local senti- 
ment, which rebels might not have in unified countries like 
England, France, or Italy. 

III. Everybody knows that it was the Federal system and 
the doctrine of State sovereignty grounded thereon, and not 
expressly excluded, though certainly not recognized, by the 
Constitution, which led to the secession of 1861, and gave 
European powers a plausible ground for recognizing the insur- 
gent minority as belligerents. Nothing seems now less prob- 
able than another secession, not merely because the supposed 
Legal basis for it has been abandoned, and because the advan- 
tages of continued union are more obvious than ever before, 
but because the precedent of the victory won by the North 
will discourage like attempts in the future. 1 This is so strongly 
fell that it has not even been thought worth while to add to 
the Constitutional! amendment negativing the right to secede. 
The doctrine of the legal indestructibility o\' the UnioD is now 

1 The Roman Catholic cantons of Switzerland (or rather the majority of 
them) formed a separate League (the so-called Sonderbiind) which it needed 

the war ii| is|7 to put down. And the effecl of that war was. as iu the par- 
allel case of America, to tighten the Federal houd tor the future. 



chap, xxix CRITICISM OF THE FEDERAL SYSTEM 345 

well established. To establish it, however, cost thousands of 
millions of dollars and the lives of a million of men. 

IV. The combination of States into groups was a familiar 
feature of politics before the war. South Carolina and the 
Gulf States constituted one such, and the most energetic, 
group; the New England States frequently acted as another, 
especially during the war of 1812. At present, though there 
are several sets of States whose common interests lead their 
representatives in Congress to act together, it is no longer the 
fashion for States to combine in an official way through their 
State organizations, and their doing so would excite reprehen- 
sion. It is easier, safer, and more effective to act through the 
great national parties. Any considerable State interest (such 
as that of the silver-miners or cattle-men, or Protectionist 
manufacturers) can generally compel a party to conciliate it 
by threatening to forsake the party if neglected. Political 
action runs less in State channels than it did formerly, and 
the only really threatening form which the combined action of 
States could take, that of using for a common disloyal purpose 
State revenues and the machinery of State governments, has 
become, since the failure of secession, most improbable. 

It has been a singular piece of good fortune that lines of 
religious difference have never happened to coincide with State 
lines ; nor has any particular creed ever dominated any group 
of States. The religious forces which in some countries and 
times have given rise to grave civil discord, have in America 
never weakened the Federal fabric. 

V. The want of uniformity in private law and methods of 
administration is an evil which different minds will judge by 
different standards. Some may think it a positive benefit to 
secure a variety which is interesting in itself and makes pos- 
sible the trying of experiments from which the whole country 
may profit. Is variety within a country more a gain or a loss ? 
Diversity in coinage, in weights and measures, in the rules 
regarding bills and cheques and banking and commerce gener- 
ally, is obviously inconvenient. Diversity in dress, in food, in 
the habits and usages of society, is almost as obviously a thing 
to rejoice over, because it diminishes the terrible monotony of 
life. Diversity in religious opinion and worship excited horror 
in the Middle Ages, but now passes unnoticed, except where 



346 THE NATIONAL GOVERNMENT part i 

governments are intolerant. In the United States the possible 
diversity of laws is immense. Subject to a few prohibitions 
contained in the Constitution, each State can play whatever 
tricks it pleases with the law of family relations, of inher- 
itance, of contracts, of torts, of crimes. But the actual diver- 
sity is not great, for all the States, save Louisiana, have taken 
the English common and statute law of 1776 as their point of 
departure, and have adhered to its main principles, A more 
complete uniformity as regards marriage and divorce might be 
desirable, for it is particularly awkward not to know whether 
you are married or not, nor whether you have been or can be 
divorced or not; and several States have tried bold experiments 
in divorce laws. 1 But, on the whole, far less inconvenienee 
than could have been expected seems to be caused by the vary- 
ing laws of different States, partly because commercial law is 
the department in which the diversity is smallest, partly beeause 
American practitioners and judges have become expert in apply- 
ing the rules for determining which law, where those of differ- 
ent States are in question, ought to be deemed to govern a given 
case. 2 However, eight States have very recently taken steps to 
reduce this diversity by appointing Commissions, instructed to 
meet and confer as to the best means of securing uniform State 
legislation on some important subjects. 

VI. He who is conducted over an iron-el ad warship, and sees 
the infinite intricacy of the machinery and mechanical appli- 
ances which it contains and by which its engines, its guns, its 
turrets, its torpedoes, its apparatus for anchoring and making 
sail, are worked, is apt to think that it must break down in the 
rough practice of war. He is told, however, that the more is 
done by machinery, the more safely and easily does everything 
goon, because the machinery can be relied on to work accurately, 
and the performance by it of the heavier work leaves the crew 

1 There is, however, little substantia] diversity in the laws of marriage in 
different states, the rale everywhere prevailing that no special ceremony is 
requisite, ami the statutory tonus not being deemed imperative. Bvea as 
regards divorce more trouble arises from Frauds practised on the laws than 
from divergent provisions in the laws themselves. 

> Although the law of Scotland still differs in many material points from 
that of England ami Ireland, having had a different origin, British subjects 
and courts <\o not tind the practical Inconveniences arising from the diversities 
to be serious except as respects marriage ami the succession to property. The 
mercantile law of the two countries tends to become practically the same. 



chap, xxix CRITICISM OF THE FEDERAL SYSTEM 347 

free to attend to the general management of the vessel and her 
armament. So in studying the elaborate devices with which 
the Federal system of the United States has been equipped, 
one fancies that with so many authorities and bodies whose 
functions are intricately interlaced, and some of which may 
collide with others, there must be a great risk of break-downs 
and deadlocks, not to speak of an expense much exceeding 
that which is incident to a simple centralized government. In 
America, however, smoothness of working is secured by elabo- 
ration of device ; and complex as the mechanism of the govern- 
ment may appear, the citizens have grown so familiar with it 
that its play is smooth and easy, attended with less trouble, 
and certainly with less suspicion on the part of the people, 
than would belong to a scheme which vested all powers in one 
administration and one legislature. The expense is admitted, 
but is considered no grave defect when compared with the 
waste which arises from untrustworthy officials and legislators 
whose depredations would, it is thought, be greater were their 
sphere of action wider, and the checks upon them fewer. He 
who examines a system of government from without is gener- 
ally disposed to overrate the difficulties in working which its 
complexity causes. Few things, for instance, are harder than 
to explain to a person who has not been a student in one of 
the two ancient English universities the nature of their highly 
complex constitution and the relation of the colleges to the 
university. , If he does apprehend it he pronounces it too in- 
tricate for the purposes it has to serve. To those who have 
grown up under it, nothing is simpler and more obvious. 

There is a blemish characteristic of the American federation 
which Americans seldom notice because it seems to them un- 
avoidable. This is the practice in selecting candidates for Fed- 
eral office of regarding not so much the merits of the candidate 
as the effect which his nomination will have upon the vote of 
the State to which he belongs. Second-rate men are run for 
first-rate posts, not because the party which runs them overrates 
their capacity, but because it expects to carry their State either 
by their local influence or through the pleasure which the State 
feels in the prospect of seeing one of its own citizens in high 
office. This of course works in favour of the politicians who 
come from a large State. No doubt the leading men of a 



.848 THE NATIONAL GOVERNMENT part i 

large State are prima facie more likely to be men of high 
ability than those of a small State, because the field of choice 
is wider, the competition probably keener. One is reminded 
of the story of the leading citizen in the isle of Seriphus who 
observed to Themistocles, " You would not have been famous 
had you been born in Seriphus," to which Themistocles replied, 
"Neither would you had you been born in Athens." The two 
great States of Virginia and Massachusetts reared one half of 
the men who Avon distinction in the first fifty years of the his- 
tory of the Eepublic. Nevertheless it often happens that a 
small State produces a first-rate man, whom the country ought 
to have in one of its highest places, but who is passed over 
because the Federal system gives great weight to the voice of 
a State, and because State sentiment is so strong that the 
voters of a State which has a large and perhaps a doubtful 
vote to cast in national elections, prefer an inferior man in 
whom they are directly interested to a superior one who is a 
stranger. 

I have left to the last the gravest reproach which Europeans 
have been wont to bring against Federalism in America. They 
attributed to it the origin, or at least the virulence, of the great 
struggle over slavery which tried the Constitution so severely. 
That struggle created parties which, though they had adherents 
everywhere, no doubt tended more and more to become identi- 
fied with States, controlling the State organizations and bending 
the State governments to their service. It gave tremendous 
importance to legal questions arising out of the differences be- 
tween the law of the Slave States and the Free States, questions 
which the Constitution had either evaded or not foreseen. It 
shook the credit of the Supreme court by making the judicial 
decision of those questions appear due to partiality to the 
Slave States. It disposed the extreme men on both sides to 
hate the Federal Union which bound them in the same body 
witli their antagonists. It laid hold of the doctrine of State 
rights and State sovereignty as entitling a commonwealth 
which deemed itself aggrieved to shake off allegiance to the 
national government. Thus at last it brought about secession 
and the great civil war. Kveii when the war was over, the 
dregS of the poison continued to haunt and vex the system, 
and bred fresh disorders in it. 'Hie constitutional duty of re- 



chap, xxix CRITICISM OF THE FEDERAL SYSTEM 349 

establishing the State governments of the conquered States on 
the one hand, and on the other hand the practical danger of 
doing so while their people remained disaffected, produced 
the military governments, the " carpet bag " governments, the 
Ku Klux Klan outrages, the gift of suffrage to a negro popu- 
lation unfit for such a privilege, yet apparently capable of 
being protected in no other way. All these mischiefs, it has 
often been argued, are the results of the Federal structure of 
the government, which carried in its bosom the seeds of its 
own destruction, seeds sure to ripen so soon as there arose a 
question that stirred men deeply. 

It may be answered not merely that the National govern- 
ment has survived this struggle and emerged from it stronger 
than before, but also that Federalism did not produce the 
struggle, but only gave to it the particular form of a series of 
legal controversies over the Federal pact followed by a war of 
States against the Union. Where such vast economic inter- 
ests were involved, and such hot passions roused, there must 
anyhow have been a conflict, and it may well be that a conflict 
raging within the vitals of a centralized government would 
have proved no less terrible and would have left as many 
noxious sequelae behind. 

In blaming either the conduct of a person or the plan and 
scheme of a government for evils which have actually fol- 
lowed, men are apt to overlook those other evils, perhaps as 
great, which might have flowed from different conduct or 
some other plan. All that can fairly be concluded from the 
history of the American Union is that Federalism is obliged 
by the law of its nature to leave in the hands of States powers 
whose exercise may give to political controversy a peculiarly 
dangerous form, may impede the assertion of national author- 
ity, may even, when long-continued exasperation has sus- 
pended or destroyed the feeling of a common patriotism, 
threaten national unity itself. Against this danger is to be 
set the fact that the looser structure of a Federal govern- 
ment and the scope it gives for diversities of legislation in 
different parts of a country may avert sources of discord, or 
prevent local discord from growing into a contest of national 
magnitude. 



CHAPTEK XXX 

MERITS OF THE FEDERAL SYSTEM 

I do not propose to discuss in this chapter the advantages 
of Federalism in general, for to do this we should have to 
wander off to other times and countries, to talk of Achaia and 
the Hanseatic League and the Swiss Confederation. I shall 
comment on those merits only which the experience of the 
American Union illustrates. 

There are two distinct lines of argument by which their 
Federal system was recommended to the framers of the Con- 
stitution, and upon which it is still held forth for imitation 
to other countries. These lines have been so generally con- 
founded that it is well to present them in a precise form. 

The first set of arguments point to Federalism proper, and 
are the following : — 

1. That Federalism furnishes the means of uniting com- 
monwealths into one nation under one national government 
without extinguishing their separate administrations, legisla- 
tures, and local patriotisms. As the Americans of 1787 would 
probably have preferred complete State independence to the 
fusion of their States into a unified government. Federalism 
was the only resource. So when the new Germanic Empire, 
which is really a Federation, was established in 1871, Bavaria 
and Wurtemberg could not have been brought under a national 
government save by a Federal scheme. Similar suggestions, 
as every one knows, have been made for re-settling the relations 
of Ireland to Great Britain, and of the self-governing British 
colonies to the United Kingdom. There are causes and condi- 
tions which dispose independent or semi-independent commu- 
nities, Or peoples living under loosely compacted governments, 

to form a closer union in a Federal form. There are other 

Causes and conditions which dispose the subjects of one gOV- 



chap, xxx MERITS OF THE FEDERAL SYSTEM 351 

eminent, or sections of these subjects, to desire to make their 
governmental union less close by substituting a Federal for a 
unitary system. In both sets of cases, the centripetal or cen- 
trifugal forces spring from the local position, the history, the 
sentiments, the economic needs of those among whom the prob- 
lem arises ; and that which is good for one people or political 
body is not necessarily good for another. Federalism is an 
equally legitimate resource whether it is adopted for the sake 
of tightening or for the sake of loosening a pre-existing bond. 

2. That Federalism supplies the best means of developing a 
new and vast country. It permits an expansion whose extent, 
and whose rate and manner of progress, cannot be foreseen to 
proceed with more variety of methods, more adaptation of laws 
and administration to the circumstances of each part of the ter- 
ritory, and altogether in a more truly natural and spontaneous 
way, than can be expected under a centralized government, 
which is disposed to apply its settled system through all its do- 
minions. Thus the special needs of a new region are met by the 
inhabitants in the way they find best : its special evils are cured 
by special remedies, perhaps more drastic than an old country 
demands, perhaps more lax than an old country would tolerate ; 
while at the same time the spirit of self-reliance among those 
who build up these new communities is stimulated and re- 
spected. 

3. That Federalism prevents the rise of a despotic central 
government, absorbing other powers, and menacing the private 
liberties of the citizen. This may now seem to have been an 
idle fear, so far as America was concerned. It was, however, 
a very real fear among the great-grandfathers of the present 
Americans, and nearly led to the rejection even of so undespotic 
an instrument as the Federal Constitution of 1789. Congress 
(or the President, as the case may be) is still sometimes de- 
scribed as a tyrant by the party which does not control it, 
simply because it is a central government: and the States are 
represented as bulwarks against its encroachments. 

The second set of arguments relate to and recommend not 
so much Federalism as local self-government. I state them 
briefly because they are familiar. 

4. Self-government stimulates the interest of people in the 
affairs of their neighbourhood, sustains local political life, edu- 



352 THE NATIONAL GOVERNMENT part i 

cates the citizen in his daily round of civic duty, teaches him 
that perpetual vigilance and the sacrifice of his own time and 
labour are the price that must be paid for individual liberty 
and collective prosperity. 

5. Self-government secures the good administration of local 
affairs by giving the inhabitants of each locality due means of 
overseeing the conduct of their business. 

That these two sets of grounds are distinct appears from the 
fact that the sort of local interest which local self-government 
evokes is quite a different thing from the interest men feel in 
the affairs of a large body like an American State. So, too, the 
control over its own affairs of a township, or even a small 
county, where everybody can know what is going on, is quite 
different from the control exercisable over the affairs of a com- 
monwealth with a million of people. Local self-government 
may exist in a unified country like England, and may be want- 
ing in a Federal country like Germany. And in America itself, 
while some States, like those of New England, possessed an 
admirably complete system of local government, others, such 
as Virginia, the old champion of State sovereignty, were im- 
perfectly provided with it. Nevertheless, through both sets of 
arguments there runs the general principle, applicable in even- 
part and branch of government, that, where other things are 
equal, the more power is given to the units which compose the 
nation, be they large or small, and the less to the nation as a 
whole and to its central authority, so much the fuller will be 
the liberties and so much greater the energy of the individuals 
who compose the people. This principle, though it had not 
been then formulated in the w r ay men formulate it now. was 
heartily embraced by the Americans. Perhaps it was because 
they agreed in taking it as an axiom that they seldom referred 
to it in the subsequent controversies regarding State rights. 
These controversies proceeded on the basis o\' the Constitution as 
a law rather than on considerations '^( general political theory. 
A European reader of the history of the first seventy years 
of the United Slates is surprised how little is said, through the 
interminable discussions regarding the relation of the Federal 
government to the States, on the respective advantages of cen- 
tralization or localization of powers as a matter of historical 
experience and general expediency. 



chap, xxx MERITS OF THE FEDERAL SYSTEM ; 353 

Three further benefits to be expected from a Federal system 
may be mentioned, benefits which seem to have been unnoticed 
or little regarded by those who established it in America. 

6. Federalism enables a people to try experiments in legis- 
lation and administration which could not be safely tried in 
a large centralized country. A comparatively small common- 
wealth like an American State easily makes and unmakes its 
laws ; mistakes are not serious, for they are soon corrected ; 
other States profit by the experience of a law or a method 
which has worked well or ill in the State that has tried it. 

7. Federalism, if it diminishes the collective force of a nation, 
diminishes also the risks to which its size and the diversities of 
its parts expose it. A nation so divided is like a ship built with 
water-tight compartments. When a leak is sprung in one com- 
partment, the cargo stowed there may be damaged, but the other 
compartments remain dry and keep the ship afloat. So if social 
discord or an economic crisis has produced disorders or foolish 
legislation in one member of the Federal body, the mischief may 
stop at the State frontier instead of spreading through and taint- 
ing the nation at large. 

8. Federalism, by creating many local legislatures with wide 
powers, relieves the national legislature of a part of that large 
mass of functions which might otherwise prove too heavy for it. 
Thus business is more promptly despatched, and the great cen- 
tral council of the nation has time to deliberate on those ques- 
tions which most nearly touch the whole country. 

All of these arguments recommending Federalism have proved 
valid in American experience. 

To create a nation while preserving the States was the main 
reason for the grant of powers which the National government 
received; an all-sufficient reason, and one which holds good 
to-day. The several States have changed greatly since 1789, 
but they are still commonwealths whose wide authority and 
jurisdiction practical men are agreed in desiring to maintain. 

Not much was said in the Convention of 1787 regarding the 
best methods of extending government over the unsettled terri- 
tories lying beyond the Alleghany mountains. 1 It was, however, 
assumed that they would develop as the older colonies had de- 

1 In 1787, however, the great Ordinance regulating the North-West Terri- 
tory was enacted by the Congress of the Confederation. 

VOL. I 2 A 



354 THE NATIONAL GOVERNMENT part i 

veloped, and in point of fact each district, when it became 
sufficiently populous, was formed into a self-governing State, 
the less populous divisions still remaining in the status of 
semi-self-governing Territories. Although many blunders have 
been committed in the process of development, especially in 
the reckless contraction of debt and the wasteful disposal of 
the public lands, greater evils might have resulted had the 
creation of local institutions and the control of new communi- 
ties been left to the Central government. 1 Congress would have 
been not less improvident than the State governments, for it 
would have been even less closely watched. The opportunities 
for jobbery would have been irresistible, the growth of order 
and civilization probably slower. It deserves to be noticed that, 
in granting self-government to all those of her colonies whose 
population is of English race, England has practically adopted 
the same plan as the United States have done with their west- 
ern territory. The results have been generally satisfactory, 
although England, like America, has found that her colonists 
have been disposed to treat the aboriginal inhabitants, whose 
lands they covet and whose persons they hate, with a harsh- 
ness and injustice which the mother country would gladly 
check. 

The arguments which set forth the advantages of local self- 
government were far more applicable to the States of 1787 than 
to those of 1887. Virginia, then the largest State, had only half 
a million free inhabitants, about the present population of St. 
Louis. Massachusetts had 450,000, Pennsylvania 400,000, New 
York 300,000; while Georgia, Ehode Island, and Delaware 
had (even counting slaves) less than 200,000 between them.' 
These were communities to which the expression "local solf- 

1 The United States is proprietor of the public domain in the Territories, 
and when a now State is organized the ownership is not changed. The United 

States, however, makes -rants of wild lands to the new State as follow-: 
(1) Of every section numbered 16 (being One thirty-sixth of all) for the support 
of common schools. (2) Of lands to endow a university. (3) ( W the lands noted 
in the surveys as swamp lands, and which often are valuable. (4) It has usu- 
ally made farther grants to aid in the construction oi railroads, and for an 
agricultural college. The grants commonly leave the United states ■ much 

larger landowner within the State than is the State itself, and when all the 
dealings of the National government with its lands are considered, it is more 
justly chargeable with squandering the public domain than the states are. 

- 1 give round numbers, reduced a little from the census of 17*.H>. 



chap, xxx MERITS OF THE FEDERAL SYSTEM 355 

government " might be applied, for, although the population 
was scattered, the numbers were small enough for the citizens 
to have a personal knowledge of their leading men, and a per- 
sonal interest (especially as a large proportion were land- 
owners) in the economy and prudence with which common 
affairs were managed. Now, however, when of the forty-four 
States twenty-seven have more than a million inhabitants, and 
four have more than three millions, the newer States, being, 
moreover, larger in area than most of the older ones, the stake 
of each citizen is relatively smaller, and generally too small to 
sustain his activity in politics, and the party chiefs of the 
State are known to him only by the newspapers or by their 
occasional visits on a stumping tour. 1 

All that can be claimed for the Federal system under this 
head of the argument is that it provides the machinery for a 
better control of the taxes raised and expended in a given 
region of the country, and a better oversight of the public 
works undertaken there than would be possible were every- 
thing left to the Central government. 2 As regards the educa- 
tive effect of numerous and frequent elections, it will be shown 
in a later chapter that elections in America are too many and 
come too frequently. Overtaxing the attention of the citizen 
and frittering away his interest, they leave him at the mercy 
of knots of selfish adventurers. 

The utility of the State system in localizing disorders or 
discontents, and the opportunities it affords for trying easily 
and safely experiments which ought to be tried in legislation 
and administration, constitute benefits to be set off against 
the risk, referred to in the last preceding chapters, that evils 

1 To have secured the real benefits of local self-government the States ought 
to have been kept at a figure not much above that of their original population, 
their territory being cut up into new States as the population increased. Had 
this been done — no doubt at the cost of some obvious disadvantages, such as 
the diminution of State historical feeling, the undue enlargement of the Senate, 
and the predominance of a single large city in a State, — there would now be 
more than two hundred States. Of course in one sense the States are no larger 
than they were in the early days, because communication from one part to 
another is in all of them far easier, quicker, and cheaper than it then was. 

2 It must be remembered that in most parts of the Union the local self- 
government of cities, counties, townships, and school districts exists in a more 
complete form than in any of the great countries of Europe. — See Chapters 
XLVIII.-LII. post. 



356 THE NATIONAL GOVERNMENT pabt i 

may continue in a district, may work injustice to a minority 
and invite imitation by other States, which the wholesome 
stringency of the Central government might have suppressed. 

A more unqualified approval may be given to the division 
of legislative powers. The existence of the State legislatures 
relieves Congress of a burden too heavy for its shoulders ; for 
although it has far less foreign policy to discuss than the 
Parliaments of England, France, or Italy, and although the 
separation of the executive from the legislative department 
gives it less responsibility for the ordinary conduct of the 
administration than devolves on those Chambers, it could not 
possibly, were its competence as large as theirs, deal with the 
multiform and increasing demands of the different parts of 
the Union. There is great diversity in the material condi- 
tions of different parts of the country, and at present the 
people, particularly in the West, are eager to have their diffi- 
culties handled, their economic and social needs satisfied, by 
the State and the law. How little Congress could satisf}' 
them appears by the very imperfect success with which it 
cultivates the field of legislation to which it is now limited. 

These merits of the Federal system of government which I 
have enumerated are the counterpart and consequences of that 
limitation of the central authority whose dangers were indi- 
cated in last chapter. They are, if one may reverse the French 
phrase, the qualities of Federalism's defects. The problem 
which all federalized nations have to solve is how to secure 
an efficient central government and preserve national unity. 
while allowing free scope for the diversities, and free play to 
the authorities, of the members of the federation. It is. to 
adopt that favourite astronomical metaphor which no American 
panegyrist of the Constitution omits, to keep the centrifugal 
and centripetal forces in equilibrium, so that neither the 
planet States shall fly off into space, nor the sun of the Cen- 
tral government draw them into its consuming tires. The 
characteristic merit of the American Constitution lies in the 
method by which it has solved this problem. It has given 
the National government a direct authority over all citi- 
zens, irrespective of the state governments, and has there- 
fore been able Bafely to leave wide powers in the hands of 
those governments. Ami by placing the Constitution above 



chap, xxx MERITS OF THE FEDERAL SYSTEM 357 

both the National and the State governments, it has referred the 
arbitrament of disputes between them to an independent body, 
charged with the interpretation of the Constitution, a body 
which is to be deemed not so much a third authority in the 
government as the living voice of the Constitution, the un- 
folder of the mind of the people whose will stands expressed 
in that supreme instrument. 

The application of these two principles, unknown to, or at 
any rate little used by, any previous federation, 1 has contrib- 
uted more than anything else to the stability of the American 
system, and to the reverence which its citizens feel for it, a 
reverence which is the best security for its permanence. Yet 
even these devices would not have succeeded but for the pres- 
ence of a mass of moral and material influences stronger than 
any political devices, which have maintained the equilibrium 
of centrifugal and centripetal forces. On the one hand there 
has been the love of local independence and self-government ; 
on the other, the sense of community in blood, in language, in 
habits and ideas, a common pride in the national history and 
the national flag. 

Quid leges sine moribusf The student of institutions, as well 
as the lawyer, is apt to overrate the effect of mechanical con- 
trivances in politics. I admit that in America they have had 
one excellent result ; they have formed a legal habit in the 
mind of the nation. But the true value of a political contriv- 
ance resides not in its ingenuity but in its adaption to the 
temper and circumstances of the people for whom it is designed, 
in its power of using, fostering, and giving a legal form to those 
forces of sentiment and interest which it finds in being. So it 
has been with the American system. Just as the passions 
which the question of slavery evoked strained the Federal 
fabric, disclosing unforeseen weaknesses, so the love of the 
Union, the sense of the material and social benefits involved 
in its preservation, appeared in unexpected strength, and 
manned with zealous defenders the ramparts of the sovereign 
Constitution. It is this need of determining the suitability of 
the machinery for the workmen and its probable influence 

1 The central government in the Achaian League had apparently a direct 
authority over the citizens of the several cities, but it was so ill defined and so 
little employed that we can hardly cite that instance as a precedent. 



358 THE NATIONAL GOVERNMENT part i 

upon them, as well as the capacity of the workman for using 
and their willingness to use the machinery, which makes it so 
difficult to predict the operation of a political contrivance, or, 
when it has succeeded in one country, to advise its imitation 
in another. The growing strength of the national government 
in the United States is largely du to sentimental forces that 
were weak a century ago, and t a development of internal 
communications which was th^ i« dreamt of. And the de- 
vices which we admire in the (. uituti^i might prove unwork- 
able among a people less patriotic and self-reliant, less law-loving 
and law-abiding, than are the English of America. 





CHAPTER XXXIT^ 

Li( 

GROWTH AND DEVELOPMi ^>OF THE CONSTITUTION 

There is another point of view from which we have still to 
consider the Constitution. It is not only a fundamental law, 
but an unchangeable law, unchangeable, that is to say, by the 
national legislature, and changeable e xr en by the people only 
through a slow and difficult process. How can a country whose 
very name suggests to us movement and progress be governed 
by a system and under an instrument which remains the same 
from year to year and from century to century ? 

By the " Constitution " of a state or a nation we mean those 
of its rules or laws which determine the form of its govern- 
ment, and the respective rights and duties of the government 
towards the citizens and of the citizens towards the govern- 
ment. These rules, or the more important among them, may 
be contained in one document, such as the Swiss or the Bel- 
gian Constitution, or may be scattered through a multitude of 
statutes and reports. of judicial decisions, as is the case with 
regard to what men call the English Constitution. This is a 
distinction of practical consequence. But a still more impor- 
tant difference exists in the fact that in some countries the 
rules or laws which make up the Constitution can be made and 
changed by the ordinary legislature just like any other laws, 
while in other countries such rules are placed above and out 
of the reach of the legislature, having been enacted and being 
changeable only by some superior authority. In countries of 
the former class the so-called Constitution is nothing more 
than the aggregate of those laws — including of course cus- 
toms and judicial decisions — which have a political character ; 
and this description is too vague to be scientifically useful, for 
no three jurists would agree as to which laws ought to be 
deemed political. In such countries there is nothing either in 



360 THE NATIONAL GOVERNMENT run i 

the form of what are commonly called constitutional law's, or 
in the source from which they emanate, or in the degree of 
their authority, to mark them off from other laws. The Con- 
stitution of England is constantly changing, for as the legisla- 
ture, in the ordinary exercise of its powers, frequently passes 
enactments which affect the methods of government and the 
political rights of the citizens, there is no certainty that what 
is called the Constitution will stand the same at the end of a 
given session of Parliament as it stood !'fc the beginning. 1 A 
constitution of this kind, capable at an] moment of being bent 
or turned, expanded or contracted, may properly be called a 
Flexible Constitution. 

In countries of the other class the laws and rules which 
prescribe the nature, powers, and functions of the government 
are contained in a document or documents emanating from an 
authority superior to that of the legislature. This authority 
may be a monarch who has octroye a charter alterable by him- 
self only. Or it may be the whole people voting at the polls ; 
or it may be a special assembly, or combination of assemblies, 
appointed ad hoc. In any case we find in such countries a law 
or group of laws distinguished from other laws not merely by 
the character of their contents, but by the source whence they 

1 The first statesman who remarked this seems to have been James Wilson, 
who said in 1788, "The idea of a constitution limiting and superintending the 
operations of legislative authority, seems not to have been accurately under- 
stood in Britain. There are at least no traces of practice conformable to such 
a principle. The British Constitution is just what the British Parliament 
pleases. When the Parliament transferred legislative authority to Henry V11L, 
the act transferring could not, in the strict acceptation o\' the term, be called 
unconstitutional. To control the powers and & iduct of the Legislature by an 
overruling constitution was an improvement in the science and practice of 
government reserved to the American States." — Elliot's Debate*, ii. 432. 
Paley had made the observation relating to England in his Moral Philosophy, 
published shortly before L787. Read and consider Oliver Cromwell's Instru- 
ment, called "The Government of the Commonwealth of England, Scotland. 
and Ireland," printed in the Parliamentary History, vol. iii. p. HIT. It was 

provided by this instrument that statutes passed in Parliament should take 
effect, even if not assented to by the Lord Protector, but only if they were 

agreeable i<> the articles of the instrument, which would therefore appeal to 
have been a genuine Rigid constitution within the terms of the definition given 

in the text. Some of the provisions of the articles are so minute that they can 
hardly have been intended to be placed above change by Parliament: but 

Cromwell seems from the remarkable speech which he delivered on Kith De- 
cember 1663, in promulgating the Instrument, to have conceived that what he 
called the Fundamentals should be unchangeable. 



chap, xxxi DEVELOPMENT OF THE CONSTITUTION 361 

spring and by the force they exert, a force which overrides and 
breaks all conflicting enactments passed by the ordinary legis- 
lature. Where the Constitution consists of such a law or laws, 
I propose to call it a Rigid Constitution, i.e. one which cannot 
be bent or twisted by the action of the legislature, but stands 
stiff and solid, opposing a stubborn resistance to the attacks 
of any majority who may desire to transgress or evade its 
provisions. As the English Constitution is the best modern 
instance of the flexile type, so is the American of the rigid 
type. 

It will at once be ^sked, How can any constitution be truly 
rigid ? Growth and decay are the necessary conditions of the 
life of institutions as well as of individual organisms. One 
constitution may be altered less frequently or easily than 
another, but an absolutely unchangeable constitution is an 
impossibility. 1 

The question is pertinent; the suggestion is true. No con- 
stitution can be made to stand unsusceptible of change, because 
if it were, it would cease to be suitable to the conditions amid 
which it has to work, that is, to the actual forces which sway 
politics. And being unsuitable, it would be weak, not rooted in 
the nature of the State and in the respect of the citizens for 
whom it exists ; and being weak, it would presently be over- 
thrown. If therefore we find a rigid constitution tenacious of 
life, if we find it enjoying, as Virgil says of the gods, a fresh 
and green old age, we may be sure that it has not stood wholly 
changeless, but has been so modified as to have adapted 

1 The constitutions of the ancient world were all or nearly all flexible, be- 
cause the ancient republics were governed by primary assemblies, all whose 
laws were of equal validity. By far the most interesting and instructive 
example is the Constitution of Rome. It presents some striking resemblances 
to the Constitution of England — both left many points undetermined, both 
relied largely upon semi-legal usages and understandings — and any constitu- 
tional lawyer who should compare the practical workings of the two in a 
philosophical way would render a service to political science. 

However, one finds here and there in Greek constitutions provisions intended 
to secure certain laws from change. At Athens, for instance, there was a dis- 
tinction between Laws (v6y.oi) which required the approval of a committee 
called the Nomothetae, and Decrees {^^ia^aTa), passed by the Assembly alone, 
and any person proposing a decree inconsistent with a law was liable to an 
action (ypa^rj ■no.po.v6i J ,<av) for having, so to speak, led the people into illegality. 
His conviction in this action carried with it a declaration of the invalidity of 
the decree. 



302 THE NATIONAL GOVERNMENT pabt i 

itself to the always altering circumstances that have grown' up 
round it. Most of all must this be true of a new country 
where men and circumstances change faster than in Europe, 
and where, owing to the equality of conditions, the leaven of 
new ideas works more thoroughly upon the whole lump. 

We must therefore be prepared to expect that the American 
Constitution will, when its present condition is compared with 
its fire-new condition in 1789, prove to have felt the hand of 
time and change. 

Historical inquiry verifies this expectation. The Constitu- 
tion of the United States, rigid though it be, has changed, has 
developed. It has developed in three ways to which I devote 
the three following chapters. 

It has been changed by Amendment. Certain provisions 
have been struck out of the original document of 1787-88 ; 
certain other, and more numerous, provisions have been added 
This method needs little explanation, because it is open and 
direct. It resembles the method in which laws are changed 
in England, the difference being that whereas in England 
statutes are changed by the legislature alone, here in the 
United States the fundamental law is changed in a more 
complex fashion by the joint action of Congress and the 
States. 

It has been developed by Interpretation, that is, by the 
unfolding of the meaning implicitly contained in its necessarily 
brief terms; or by the extension of its provisions to i 
which they do not directly contemplate, but which their gen- 
eral spirit must be deemed to cover. 

It has been developed by Usage, that is, by the establish- 
ment of rules not inconsistent with its express provisions, but 
giving them a character, effect, and direction which they 
would not have if they stood alone, and by which their work- 
ing is materially modified These rules are sometimes em- 
bodied in statutes pissed by Congress and repealable by Con- 
gress. Sometimes they remain in the stage of a mere conven- 
tion or understanding which has no legal authority, but which 
everybody knows and accepts. Whatever their form, they 
must not conflict with the letter of the Constitution, for if 
they do conflict with it, they will be deemed invalid whenever 

a question involving them comes before a court of law. 



chap, xxxi DEVELOPMENT OF THE CONSTITUTION 363 

It may be observed that of these three modes of change, the 
first is the most obvious, direct, and effective, but also the 
most difficult to apply, because it needs an agreement of many 
independent bodies which is rarely attainable. The second 
mode is less potent in its working, because an interpretation 
put on a provision may be recalled or modified by the same 
authority, viz. the courts of law (and especially the Supreme 
Federal Court), which has delivered it. But while a particular 
interpretation stands, it is as strong as the Constitution itself, 
being indeed incorporated therewith, and therefore stronger than 
anything which does not issue from the same ultimate source 
of power, the will of the people. The weakest, though the 
easiest and most frequent method, is the third. For legisla- 
tion and custom are altogether subordinate to the Constitution, 
and can take effect only where the letter of the Constitution is 
silent, and where no authorized interpretation has extended the 
letter to an unspecified case. But they work readily, quickly, 
freely ; and the developments to be ascribed to them are there- 
fore as much larger in quantity than those due to the two 
other methods as they are inferior in weight and permanence. 

We shall perceive after examining these three sources of 
change not only that the Constitution as it now stands owes 
much to them, but that they are likely to modify it still further 
as time goes on. We shall find that, rigid as it is, it suffers 
constant qualification and deflection, and that while its words 
continue in the main the same, it has come to mean something 
different to the men of 1890 from what it meant to those of 
1810 when it had been at work for more than twenty years, or 
even to those of 1860, when the fires of protracted controversy 
might be thought to have thrown a glare of light into every 
corner of its darkest chamber. 



CHAPTER XXXII 

THE AMENDMENT OF THE CONSTITUTION 

The men who sat in the Convention of 1787 were not san- 
guine enough, like some of the legislating sages of antiquity, 
or like such imperial codifiers as the Emperor Justinian, to 
suppose that their work could stand unaltered for all time to 
come. They provided (Art. v.) that "Congress, whenever 
two-thirds of both houses shall deem it necessary, shall pro- 
pose amendments to this Constitution, or on the application 
of the legislatures of two-thirds of the several States, shall call 
a convention for proposing amendments, which, in either case, 
shall be valid to all intents and purposes as part of this Consti- 
tution when ratified by the legislatures of three-fourths of the 
several States, or by conventions in three-fourths thereof, as 
the one or the other mode may be prescribed by Congress." 

There are therefore two methods of framing and proposing 
amendments. 

(A) Congress may itself, by a two-thirds vote in each house, 
prepare and propose amendments. 

(1)) The legislatures of two-thirds of the States may require 
Congress to summon a Constitutional Convention. Congress 
shall thereupon do so, having no option to refuse ; ami the Con- 
vention when called shall draft and submit amendments. No 
provision is made as to the election and composition of the 
Convention, matters which would therefore appear to be left to 
the discretion of Congress. 

There are also two methods of enacting amendments framed 
and proposed in either of the foregoing ways. It is left to 
Congress to prescribe one or other method as Congress may 
think fit. 

(X) The legislatures of three-fourths oi the States may 

ratify any amendments submitted to them. 

864 



chap, xxxn AMENDMENT OF THE CONSTITUTION 365 

(Y) Conventions may be called in the several States, and 
three-fourths of these conventions may ratify. 1 

On all the occasions on which the amending power has been 
exercised, method A has been employed for proposing and 
method X for ratifying — i.e. no drafting conventions of the 
whole Union or ratifying conventions in the several States have 
ever been summoned. The preference of the action of Con- 
gress and the State legislatures may be ascribed to the fact that 
it has never been desired to remodel the whole Constitution, 
but only to make changes or additions on special points. 
Moreover, the procedure by National and State conventions 
might be slower, and would involve controversy over the 
method of electing those bodies. The consent of the President 
is not required to a constitutional amendment. 2 A two-thirds 
majority in Congress can override his veto of a Bill, and at 
least that majority is needed to bring a constitutional amend- 
ment before the people. 

There is only one provision of the Constitution which cannot 
be changed by this process. It is that which secures to each 
and every State equal representation in one branch of the 
legislature. "No State without its consent shall be deprived 
of its equal suffrage in the Senate" (Art. v.). It will be ob- 
served that this provision does not require unanimity on the 
part of the States to a change diminishing or extinguishing 
State representation in the Senate, but merely gives any par- 
ticular State proposed to be affected an absolute veto on the 
proposal. If a State were to consent to surrender its rights, 
and three-fourths of the whole number to concur, the resistance 
of the remaining fourth would not prevent the amendment 
from taking effect. 

Following President Lincoln, Americans speak of the Union 
as indestructible ; and the expression, "An indestructible Union 
of indestructible States, " has been used by the Supreme court 
in a famous case. 3 But looking at the constitution simply as 
a legal document, one finds nothing in it to prevent the adop- 

1 No time is fixed within which the ratification must take place, a somewhat 
inconvenient omission. 

2 The point was decided hy the Supreme court in 1794 in the case of Hollings- 
worth v. State of Vermont (3 Dall. 378) ; aud the Senate came to the same con- 
clusion in 1865. See Jameson on Constitutional Conventions, § 560. 

3 Texas v. White, see ante, p. 322. 



366 THE NATIONAL GOVERNMENT part i 

tion of an amendment providing a method for dissolving the 
existing Federal tie, whereupon such method would be applied 
so as to form new unions, or permit each State to become an 
absolutely sovereign and independent commonwealth. The 
power of the people of the United States appears competent to 
effect this, should it ever be desired, in a perfectly legal way, 
just as the British Parliament is legally competent to re-divide 
Great Britain into the sixteen or eighteen independent king- 
doms which existed within the island in the eighth century. 

The amendments made by the above process (A -f X) to the 
Constitution have been in all fifteen in number. These have 
been made on four occasions, and fall into four groups, two of 
which consist of one amendment each. The first group, in- 
cluding ten amendments made immediately after the adoption 
of the Constitution, ought to be regarded as a supplement or 
postscript to it, rather than as changing it. They constitute what 
the Americans, following the English precedent, call a Bill of 
Eights, securing the individual citizen and the States against 
the encroachments of Federal power. 1 The second and third 
groups, if a single amendment can be properly called a group 
(Viz. amendments xi. and xii.) are corrections of minor defects 
which had disclosed themselves in the working of the Constitu- 
tion. 2 The fourth group is the only one which marked a 
political crisis and registered a political victory. It comprises 
three amendments (xiii. xiv. xv.) which forbid slavery, define 
citizenship, secure the suffrage of citizens against attempts by 
States to discriminate to the injury of particular classes, and 
extend Federal protection to those citizens who may suffer 
from the operation of certain kinds of unjust State laws. 
These three amendments are the outcome of the War of S 
sion, and were needed in order to confirm and secure for the 
future its results. The requisite majority of Stales was ob- 
tained under conditions altogether abnormal, some of the lately 
conquered States ratifying while actually controlled by the 

northern armies, Others as the price which they were obliged 

1 These ten amendments were proposed by the first Congress, having boon 
framed by ii <>ui of ioa amendments suggested by various states, ami were 
ratified by all the States but three. They took effect in December 1791. 

8 The eleventh amendment negatived a construction which the Supreme 

court had put upon its own judicial powers (see above, p. 232); the twelfth 
corrected a fault in the method of choosing tin- President, 



chap, xxxn AMENDMENT OF THE CONSTITUTION 367 

to pay for the re-admission to Congress of their senators and 
representatives. 1 The details belong to history : all we need 
here note is that these deep-reaching, but under the circum- 
stances perhaps unavoidable, changes were carried through not 
by the free will of the peoples of three-fourths of the States, 
but under the pressure of a majority which, had triumphed in 
a great war, and used its command of the National government 
and military strength of the Union to effect purposes deemed 
indispensable to the reconstruction of the Federal system. 2 

Many amendments to the Constitution have been at various 
times suggested to Congress by Presidents, or brought forward 
in Congress by members, but very few of these have ever ob- 
tained the requisite two-thirds vote of both Houses. In 1789, 
however, and again in 1807, amendments were passed by Con- 
gress and submitted to the States for which the requisite 
majority of three-fourths of the States was not obtained; and 
in February and March 1861 an amendment forbidding the 
Constitution to be ever so amended as to authorize Congress 

1 The thirteenth amendment was proposed by Congress in February 1865, 
ratified and declared in force December 1865 ; the fourteenth was proposed by 
Congress June 1866, ratified and declared in force July 1868 ; the fifteenth was 
proposed by Congress February 1869, ratified and declared in force March 
1870. The fourteenth amendment had given the States a strong motive for 
enfranchising the negroes by cutting down the representation in Congress of 
any State which excluded male inhabitants (being citizens of the United 
States) from the suffrage; the fifteenth went further and forbade "race, 
colour, or previous condition of servitude," to be made a ground of exclusion. 
The grounds for this bold step were succinctly set forth by Senator Willey (of 
West Virginia) when he said that the suffrage was the only sure guarantee the 
negro could have in many parts of the country for the enjoyment of his civil 
rights ; that it would be a safer shield than law, and that it was required by 
the demands of justice, the principles of human liberty, and the spirit of Chris- 
tian civilization. 

The effect of these three amendments was fully considered by the Supreme 
court (in 1872) in the so-called Slaughter-house Cases (16 Wall. 82), the effect 
of which is thus stated by Mr. Justice Miller: "With the exception of the 
specific provisions in the three amendments for the protection of the per- 
sonal rights of the citizens and people of the United States, and the necessary 
restrictions upon the power of the States for that purpose, with the additions 
to the power of the general government to enforce those provisions, no sub- 
stantial change has been made in the relations of the State governments to 
the Federal government." — Address delivered before the University of Mich- 
igan, 1887. 

2 But though military coercion influenced the adoption of the thirteenth 
amendment, while political coercion bore a large part in securing the adoption 
of the others, it must be remembered that some changes in the Constitution 
were an absolutely necessary corollary to the war which had just ended. 



308 THE NATIONAL GOVERNMENT part i 

to interfere with the " domestic institutions," including slavery, 
of any State, was passed in both Houses, but never submitted to 
the States, because war broke out immediately afterwards. It 
would doubtless, had peace been preserved, have failed to ob- 
tain the acceptance of three-fourths of the States, and its effect 
could only have been to require those who might thereafter 
propose to amend the Constitution so as to deal with slaver}', to 
propose also the repeal of this particular amendment itself. 1 

The moral of these facts is not far to seek. Although it 
has long been the habit of the Americans to talk of their 
Constitution with almost superstitious reverence, there have 
often been times when leading statesmen, perhaps even politi- 
cal parties, would have materially altered it if they could have 
done so. There have, moreover, been some alterations sug- 
gested in it, which the impartial good sense of the wise would 
have approved, but which have never been submitted to the 
States, because it was known they could not be carried by the 
requisite majority. 2 If, therefore, comparatively little use 

1 The Greek republics of antiquity sometimes placed some particular law 
under a special sanction by denouncing the penalty of death on any one who 
should propose to repeal it. In such cases, the man who intended to repeal the 
law so sanctioned of course began by proposing the repeal of the law which 
imposed the penalty. So it would have been in this ease: so it must always 
be. No sovereign body can limit its own powers. The British Parliament 
seems to have attempted to bind itself by providing in the Act of Union with 
Ireland (39 and 40 George III., c. 67) that the maintenance of the Protestant 
Episcopal Church as an Established Church in Ireland should be " deemed an 
essential and fundamental part of the Union." That Church was. however, dis- 
established in 1869 with as much ease as though this provision bad never existed. 

2 In the Forty-ninth Congress (1884 86) no fewer than forty-seven proposi- 
tions were introduced for the amendment of the Constitution, some of them of 
a sweeping, several of a rather complex, nature. (Some of these covered the 
same ground, so the total number of alterations proposed was less than forty- 
seven.) None seems to have been voted on by Congress; and only five or six- 
even deserved serious consideration. One at least, thai enabling the President 
to veto items in an appropriation bill, would have effected a great improve- 
ment. I find among them the following proposals: To prohibit the sale oi 
alcoholic liquors, to forbid polygamy, to confer the suffrage on women, to ?esl 
the election of the President directly in the people, to elect representatives 
for three instead of two years, to choose senators by popular election, to 
empower Congress to limit the hours of labour, to empower Congress to pass 
uniform laws regarding marriage and divorce, to enable the people to elect 
certain Federal officers, to forbid Congress to pass any local private or special 
enactment, to forbid Congress to direct the payment of claims legally barred 
by lapse of time, to forbid the States to hire out the labour of prisoners. 

In the first session ot the Fifty-firel Congress twenty-eight such propositions 



chap, xxxii AMENDMENT OF THE CONSTITUTION 369 



has been made of the provisions for amendment, this has 
been due, not solely to the excellence of the original instru- 
ment, but also to the difficulties which surround the process of 
change. Alterations, though perhaps not large alterations, 
have been needed, to cure admitted faults or to supply dan- 
gerous omissions, but the process has been so difficult that it 
has never been successfully applied, except either to matters of 
minor consequence involving no party interests (Amendments 
xi. and xii.), or in the course of a revolutionary movement which 
had dislocated the Union itself (Amendments xiii. xiv. xv.). 

Why then has the regular procedure for amendment proved 
in practice so hard to apply ? 

Partly, of course, owing to the inherent disputatiousness and 
perversity (what the Americans call " cusseclness") of bodies 
of men. It is difficult to get two-thirds of two assemblies (the 
Houses of Congress) and three-fourths of forty-four com- 
monwealths, each of which acts by two assemblies, for the 
State legislatures are all double-chambered, to agree to the 
same practical proposition. Except under the pressure of 
urgent troubles, such as were those which procured the accept- 
ance of the Constitution itself in 1788, few persons or bodies 
will consent to forego objections of detail, perhaps in them- 
selves reasonable, for the mere sake of agreeing to what others 
have accepted. They want to have what seems to themselves 
the very best, instead of a second best suggested by some one 
else. Now, bodies enjoying so much legal independence as do 
the legislatures of the States, far from being disposed to defer 
to Congress or to one another, are more jealous, more sus- 
picious, more vain and opinionated, than so many individuals. 
Nothing but a violent party spirit, seeking either a common 
party object or individual gain to flow from party success, 
makes them work together. 

If an amendment comes to the legislatures recommended 
by the general voice of their party, they will be quick to 
adopt it. But in that case it will encounter the hostility of 
the opposite party, and parties are in most of the Northern 
States pretty evenly balanced. It is seldom that a two-thirds 

were introduced, including proposals for the prohibition of lotteries, to sup- 
press trusts and prohibit gambling in agricultural products, to modify the 
clause in the Federal Constitution regarding the obligation of contracts. 
VOL. I 2 B 



370 THE NATIONAL GOVERNMENT part i 

majority in either House of Congress can be secured on a 
party issue; and of course such majorities in both Houses, and 
a three-fourths majority of State legislatures on a party issue, 
are still less probable. Now, in a country pervaded by the 
spirit of party, most questions either are at starting, or soon 
become, controversial. A change in the Constitution, however 
useful its ultimate consequences, is likely to be for the 
moment deemed more advantageous to one party than to the 
other, and this is enough to make the other party oppose it. 
The mere fact that a proposal comes from one side, rouses the 
suspicion of the other. There is always that dilemma of 
which England has so often felt the evil consequences. If a 
measure of reform is pressing, it becomes matter of party con- 
tention, and excites passion. If it is not pressing, neither 
party, having other and nearer aims, cares to take it up and 
push it through. In America, a party amendment to the Con- 
stitution can very seldom be carried. A non-party amendment 
falls into the category of those things which, because they are 
everybody's business, are the business of nobody. 

It is evident when one considers the nature of a Eigid or 
Supreme constitution, that some method of altering it so as to 
make it conform to altered facts and ideas is indispensable. A 
European critic may remark that the American method has 
failed to answer the expectations formed of it. The belief, he 
will say, of its authors was that while nothing less than a 
general agreement would justify alteration, that agreement 
would exist when omissions impeding its working were dis- 
covered. But this has not conn 1 to pass. There have been 
long and fierce controversies over the construction of sev- 
eral points in the Constitution, over the right of Congress 
to spend money on internal improvements, to charter a 
national bank, to impose a protective tariff, above all. over 
the treatment of slavery in the Territories. But the method 
of amendment was not applied to any ^A' these questions, 
because no general agreement could be reached upon them, 
or indeed upon any but secondary matters. So the strug- 
gle over the interpretation of a document which it was 
found impossible to amend, passed from the law courts to 
the battle-field. Americans reply to such criticisms by ob- 
serving that the power o\' amending the Constitution is one 



chap, xxxii AMENDMENT OE THE CONSTITUTION 371 

which cannot prudently be employed to conclude current polit- 
ical controversies, that if it were so used no constitution 
could be either rigid or reasonably permanent, that some 
latitude of construction is desirable, and that in the above- 
mentioned cases amendments excluding absolutely one or 
other of the constructions contended for would either have 
tied down the legislature too tightly or have hastened a prob- 
ably inevitable conflict. 

Ought the process of change to be made easier ? say by 
requiring only a bare majority in Congress, and a two-thirds 
majority of States ? American statesmen think not. A swift 
and easy method would not only weaken the sense of security 
which the rigid Constitution now gives, but would increase the 
troubles of current politics by stimulating a majority in Con- 
gress to frequently submit amendments to the States. The 
habit of mending would turn into the habit of tinkering. 
There would be too little distinction between changes in the 
ordinary statute law, which require the agreement of majori- 
ties in the two Houses and the President, and changes in the 
more solemnly enacted fundamental law. And the rights of 
the States, upon which congressional legislation cannot now 
directly encroach, would be endangered. The French scheme, 
under which an absolute majority of the two Chambers, sitting 
together, can amend the Constitution; or even the Swiss 
scheme, under which a bare majority of the voting citizens, 
coupled with a majority of the Cantons, can ratify constitu- 
tional changes drafted by the Chambers, in pursuance of a pre- 
vious popular vote for the revision of the Constitution, 1 is 
considered by the Americans dangerously lax. The idea 
reigns that solidity and security are the most vital attributes 
of a fundamental law. 

From this there has followed another interesting result. 
Since modifications or developments are often needed, and 
since they can rarely be made by amendment, some other way 
of making them must be found. The ingenuity of lawyers has 
discovered one method in interpretation, while the dexterity of 
politicians has invented a variety of devices whereby legisla- 
tion may extend, or usage may modify, the express provisions 
of the apparently immovable and inflexible instrument. 
1 See the Swiss Federal Constitution, Arts. 118-121. 



CHAPTER XXXIII 

THE INTERPRETATION OF THE CONSTITUTION 

The Constitution of England is contained in hundreds of 
volumes of statutes and reported cases ; the Constitution of 
the United States (including the amendments) may be read 
through aloud in twenty-three minutes. It is about half as 
long as St. Paul's first Epistle to the Corinthians, and onl}* one- 
fortieth part as long as the Irish Land Act of 1881. History 
knows few instruments which in so few words lay down equally 
momentous rules on a vast range of matters of the highest im- 
portance and complexity. The Convention of 1787 were well 
advised in making their draft short, because it was essential 
that the people should comprehend it, because fresh differences 
of view would have emerged the further they had gone into 
details, and because the more one specifies, the more one has to 
specify and to attempt the impossible task of providing before- 
hand for all contingencies. These sages were therefore con- 
tent to lay down a few general rules and principles, leaving 
some details to be filled in by congressional legislation, and 
foreseeing that for others it would be necessary to trust to 
interpretation. 

. It is plain that the shorter a law is, the more general must 
its language be, and the greater therefore the need for interpre- 
tation. So too the greater the range of a law, and the more 
numerous and serious the cases which it governs, the more 
frequently will its meaning be canvassed. There have been 
statutes dealing with private law, such as the Lex Aquilia at 
Rome and the Statute of Frauds in England, on which many 
volumes of commentaries have been written, and thousands of 
juristic and judicial constructions placed. Much more then 
must we expect to find great public and constitutional enact- 
ments subjected to the closest scrutiny in order to dis< 

372 






chap, xxxin INTERPRETATION OF CONSTITUTION 373 

every shade of meaning which their words can be made to bear. 
Probably no writing except the New Testament, the Koran, 
the Pentateuch, and the Digest of the Emperor Justinian, 
has employed so much ingenuity and labour as the Ameri- 
can Constitution, in sifting, weighing, comparing, illustrating, 
twisting, and torturing its text. It resembles theological writ- 
ings in this, that both, while taken to be immutable guides, 
have to be adapted to a constantly changing world, the one to 
political conditions which vary from year to year and never re- 
turn to their former state, the other to new phases of thought 
and emotion, new beliefs in the realms of physical and ethical 
philosophy. There must, therefore, be a development in con- 
stitutional formulas, just as there is in theological. It will 
come, it cannot be averted, for it comes in virtue of a law of 
nature : all that men can do is to shut their eyes to it, and 
conceal the reality of change under the continued use of time- 
honoured phrases, trying to persuade themselves that these 
phrases mean the same thing to their minds to-day as they 
meant generations or centuries ago. As a great theologian 
says, " In a higher world it is otherwise ; but here below to 
live is to change, and to be perfect is to have changed often." 1 

The Constitution of the United States is so concise and so 
general in its terms, that even had America been as slowly 
moving a country as China, many questions must have arisen 
on the interpretation of the fundamental law which would have 
modified its aspect. But America has been the most swiftly 
expanding of all countries. Hence the questions that have 
presented themselves have often related to matters which the 
framers of the Constitution could not have contemplated. 
Wiser than Justinian before them or Napoleon after them, 
they foresaw that their work would need to be elucidated by 
judicial commentary. But they were far from conjecturing 
the enormous strain to which some of their expressions would 
be subjected in the effort to apply them to new facts. 

I must not venture on any general account of the interpreta- 
tion of the Constitution, nor attempt to set forth the rules of 
construction laid down by judges and commentators, for this 
is a vast matter and a matter for law books. All that this 
chapter has to do is to indicate, very generally, in what way 
1 Newman, Essay on Development, p. 39. 



374 THE NATIONAL GOVERNMENT part i 

and with what results the Constitution has been expanded, de- 
veloped, modified, by interpretation ; and with that view there 
are three points that chiefly need discussion: (1) the authori- 
ties entitled to interpret the Constitution, (2) the main prin- 
ciples followed in determining whether or no the Constitution 
has granted certain powers, (3) the checks on possible abuses 
of the interpreting power. 

1. To whom does it belong to interpret the Constitution ? 
Any question arising in a legal proceeding as to the meaning 
and application of this fundamental law will evidently be 
settled by the courts of law. Every court is equally bound to 
pronounce and competent to pronounce on such questions, a 
State court no less than a Federal court ; 1 but as all the more 
important questions are carried by appeal to the supreme 
Federal court, it is practically that court whose opinion finally 
determines them. 

Where the Federal courts have declared the meaning of a 
law, every one ought to accept and guide himself by their 
deliverance. But there are always questions of construction 
which have not been settled by the courts, some because they 
have not happened to arise in a law-suit, others because they 
are such as can scarcely arise in a law-suit. As regards such 
points, every authority, Federal or State, as well as every citi- 
zen, must be guided by the best view he or they can form of 
the true intent and meaning of the Constitution, taking, of 
course, the risk that this view may turn out to be wrong. 

There are also points of construction which every court, 
following a well-established practice, will refuse to decide, be- 
cause they are deemed to be of " a purely political nature," a 
vague description, but one which could be made more specific 
only by an enumeration of the cases which have settled the 
practice. These points are accordingly left to the discretion 
of the executive and legislative powers, each of which forms 
its view as to the matters falling within its sphere, and in 
acting on that view is entitled to the obedience of the citizens 
and of the States also. 

It is therefore an error to suppose that the judiciary is the 
only interpreter of the Constitution, for a certain field remains 
open to the other authorities of the government, whose views 

i See Chapter XXIV. ante. 



chap, xxxiii INTEKPRETATION OF CONSTITUTION 375 

need not coincide, so that a dispute between those authorities, 
although turning on the meaning of the Constitution, may be 
incapable of being settled by any legal proceeding. This 
causes no great confusion, because the decision, whether of 
the political or the judicial authority, is conclusive so far as 
regards the particular controversy or matter passed upon. 

The above is the doctrine now generally accepted in 
America. But at one time the Presidents claimed the much 
wider right of being, except in questions of pure private law, 
generally and prima facie entitled to interpret the Constitution 
for themselves, and to act on their own interpretation, even 
when it ran counter to that delivered by the Supreme court. 
Thus Jefferson denounced the doctrine laid down in the famous 
judgment of Chief- Justice Marshall in the case of Marbury v. 
Madison ; 1 thus Jackson insisted that the Supreme court was 
mistaken in holding that Congress had power to charter the 
United States bank, and that he, knowing better than the 
court did what the Constitution meant to permit, was entitled 
to attack the bank as an illegal institution, and to veto a bill 
proposing to re-charter it. 2 Majorities in Congress have more 
than once claimed for themselves the same independence. 
But of late years both the executive and the legislature have 
practically receded from the position which the language 
formerly used seemed to assert ; while, on the other hand, the 
judiciary, by their tendency during the whole course of their 
history to support every exercise of power which they did not 
deem plainly unconstitutional, have left a wide field to those 
authorities. If the latter have not used this freedom to 
stretch the Constitution even more than they have done, it is 

1 As the court dismissed upon another point in the case the proceedings 
against Mr. Secretary Madison, the question whether Marshall was right did 
not arise in a practical form. 

2 There was, however, nothing unconstitutional in the course which Jackson 
actually took in withdrawing the deposits from the United States Bank and in 
vetoing the bill for a re-charter. It is still generally admitted that a President 
has the right in considering a measure coming to him from Congress to form 
his own judgment, not only as to its expediency but as to its conformability to 
the Constitution. Judge Cooley observes to me : "If Jackson sincerely believed 
that the Constitution had been violated in the first and second charter, he was 
certainly not bound, when a third was proposed, to surrender his opinion in 
obedience to precedent. The question of approving a new charter was politi- 
cal; and he was entirely within the line of duty in refusing it for any reasons 
which, to his own mind, seemed sufficient." 



376 THE NATIONAL GOVERNMENT paw i 

not solely the courts of law, but also public opinion and their 
own professional associations (most presidents, ministers, and 
congressional leaders having been lawyers) that have checked 
them. 

II. The Constitution has been expanded by construction in 
two ways. Powers have been exercised, sometimes by the 
President, more often by the legislature, in passing statutes, 
and the question has arisen whether the powers so exercised 
were rightfully exercised, i.e. were really contained in the 
Constitution. When the question was resolved in the affirma- 
tive by the court, the power has been henceforth recognized as 
a part of the Constitution, although, of course, liable to be 
subsequently denied by a reversal of the decision which estab- 
lished it. This is one way. The other is where some piece of 
State legislation alleged to contravene the Constitution has 
been judicially decided to contravene it, and to be therefore 
invalid. The decision, in narrowing the limits of State author- 
ity, tends to widen the prohibitive authority of the Constitu- 
tion, and confirms it in a range and scope of action which was 
previously doubtful. 

Questions of the above kinds sometimes arise as questions of 
Interpretation in the strict sense of the term, i.e. as questions 
of the meaning of a term or phrase which is so far ambiguous 
that it might be taken either to cover or not to cover a case 
apparently contemplated by the people when they enacted the 
Constitution. Sometimes they are rather questions to which 
we may apply the name of Construction, i.e. the case that has 
arisen is one apparently not contemplated by the enactors of 
the Constitution, or one which, though possibly contemplated, 
has for brevity's sake been omitted; but the Constitution has 
nevertheless to be applied to its solution. In the former ease 
the enacting power has said something which bears, or is sup- 
posed to bear, on the matter, and the point to be determined 
is. What do the words mean ? In the latter it lias not directly 
referred to the matter, and the question is, Can anything be 
gathered from its language which covers the point that has 
arisen, which establishes a principle large enough to reach 
and include an unmentioned ease, indicating what the enact- 
ing authority would have said had the matter been present 

to its mind. 01 had it thought tit to enter on an enumera- 



chap, xxxin INTERPRETATION OF CONSTITUTION 377 

tion of specific instances ? 1 As the Constitution is not only 
a well-drafted instrument with few ambiguities but also a 
short instrument which speaks in very general terms, mere in- 
terpretation has been far less difficult than construction. 2 It 
is through the latter chiefly that the Constitution has been, and 
still continues to be, developed and expanded. The nature of 
these expansions will appear from the nature of the Federal 
government. It is a government of delegated and specified 
powers. The people have entrusted to it, not the plenitude of 
their own authority but certain enumerated functions, and its 
lawful action is limited to these functions. Hence, when the 
Federal executive does an act, or the Federal legislature passes 
a law, the question arises — Is the power to do this act or pass 
this law one of the powers which the people have by the Con- 
stitution delegated to their agents ? The power may never 
have been exerted before. It may not be found expressed, in 
so many words, in the Constitution. Nevertheless it may, upon 
the true construction of that instrument, taking one clause 
with another, be held to be therein contained. 

1 For example, the question whether an agreement carried out between a 
State and an individual by a legislative act of a State is a " contract " within 
the meaning of the prohibition against impairing the obligation of a contract, 
is a question of interpretation proper, for it turns on the determination of the 
meaning of the term " contract." The question whether Congress had power 
to pass an act emancipating the slaves of persons aiding in a rebellion was a 
question of construction, because the case did not directly arise under any pro- 
vision of the Constitution, and was apparently not contemplated by the 
framers thereof. It was a question which had to be solved by considering what 
the war powers contained in the Constitution might be taken to imply. The 
question whether the National government has power to issue treasury notes is 
also a question of construction, because, although this is a case which may 
possibly have been contemplated when the Constitution was enacted, it is to be 
determined by ascertaining whether the power " to borrow money " covers this 
particular method of borrowing. There is no ambiguity about the word 
"borrow"; the difficulty is to pronounce which out of various methods of 
borrowing, some of which probably were contemplated, can be properly 
deemed, on a review of the whole financial attributes and functions of the 
National government, to be included within the borrowing power. 

As to the provision restraining States from passing laws impairing the obli- 
gation of a contract, see note at the end of this volume on the case of Dart- 
mouth College v. Woodward. 

2 As the Constitution is deemed to proceed from the People who enacted it, 
not from the Convention who drafted it, it is regarded for the purposes of inter- 
pretation as being the work not of a group of lawyers but of the people them- 
selves. For a useful summary of some of the general rules of constitutional 
interpretation, see Patterson's Federal Restraints on State Action, pp. 215-217. 



378 THE NATIONAL GOVERNMENT part i 

Now the doctrines laid down by Chief-Justice Marshall, and 
on which the courts have constantly since proceeded, may be 
summed up in two propositions. 

1. Every power alleged to be vested in the National govern- 
ment, or any organ thereof, must be affirmatively shown to 
have been granted. There is no presumption in favour of the 
existence of a power ; on the contrary, the burden of proof 
lies on those who assert its existence, to point out something 
in the Constitution which, either expressly or by necessary im- 
plication, confers it. Just as an agent, claiming to act on be- 
half of his principal, must make out by positive evidence that 
his principal gave him the authority he relies on ; so Congress, 
or those who rely on one of its statutes, are bound to show that 
the people have authorized the legislature to pass the statute. 
The search for the power will be conducted in a spirit of strict 
exactitude, and if there be found in the Constitution nothing 
which directly or impliedly conveys it, then whatever the ex- 
ecutive or legislature of the National government, or both of 
them together, may have done in the persuasion of its existence, 
must be deemed null and void, like the act of any other unau- 
thorized agent. 1 

2. When once the grant of a power by the people to the 
National government has been established, that power will be 
construed broadly. The strictness applied in determining its 
existence gives place to liberality in supporting its application. 
The people — so Marshall and his successors have argued — 
when they confer a power, must be deemed to confer a wide dis- 
cretion as to the means whereby it is to be used in their service. 
For their main object is that it should be used vigorously and 
wisely, which it cannot be if the choice of methods is narrowly 
restricted; and while the people may well be chary in delegat- 
ing powers to their agents, they must be presumed, when they 
do grant these powers, to grant them with confidence in the 

1 For instance, several years ago a person summoned as a witness before a 
committee of the House of Represent at h eswas imprisoned by order of the House 
for refusing to answer certain questions put to him. He sued the serjeant-at- 
arms for false Imprisonment, and recovered damages, the Supreme court hold- 
ing thai as the Constitution could not be shown to have conferred on either 
House of Congress any power to punish for contempt, that power (though 

frequently theretofore exercised) <li<l not exist, and the order of the House 
therefore constituted no defence for tin- sergeant's art {Kilbourn \. Thompson, 
103 United Btates, 168), 



chap, xxxin INTERPRETATION OF CONSTITUTION 379 

agents' judgment, allowing all that freedom in using one means 
or another to attain the desired end which is needed to ensure 
success. 1 This, which would in any case be the common-sense 
view, is fortified by the language of the Constitution, which 
authorizes Congress "to make all laws which shall be necessary 
and proper for carrying into execution the foregoing powers, 
and all other powers vested by this Constitution in the Govern- 
ment of the United States, or in any department or office 
thereof." The sovereignty of the National government, there- 
fore, "though limited to specified objects, is plenary as to those 
objects " 2 and supreme in its sphere. Congress, which cannot 
go one step beyond the circle of action which the Constitution 
has traced for it, may within that circle choose any means 
which it deems apt for executing its powers, and is in its 
choice of means subject to no review by the courts in their 
function of interpreters, because the people have made their 
representatives the sole and absolute judges of the mode in 
which the granted powers shall be employed. This doctrine of 
implied powers, and the interpretation of the words " necessary 
and proper," were for many years a theme of bitter and inces- 
sant controversy among American lawyers and publicists. 3 The 

1 For instance, Congress having power to declare war, has power to prose- 
cute it by all means necessary for success, and to acquire territory either by 
conquest or treaty. Having power to borrow money, Congress may, if it thinks 
fit, issue treasury notes, and may make them legal tender. 

2 See Gibbons v. Ogden, 9 Wheat, p. 1 sqq., judgment of Marshall, C.-J. 

3 " The powers of the government are limited, and its limits are not to be 
transcended. But the sound construction of the Constitution must allow to the 
national legislature that discretion with respect to the means by which the 
powers it confers are to be carried into execution, which will enable that body 
to perform the high duties assigned to it in the manner most beneficial to the 
people. Let the end be legitimate, let it be within the scope of the Constitution, 
and all means which are appropriate, which are plainly adapted to that end, 
which are not prohibited but consistent with the letter and spirit of the Constitu- 
tion, are constitutional." — Marshall, C.-J., in M'Gulloch v. Maryland (4 Wheat. 
316). This is really a working-out of one of the points of Hamilton's famous 
argument in favour of the constitutionality of a United States bank : " Every 
power vested in a government is in its nature sovereign, and includes by force 
of the term a right to employ all the means requisite and fairly applicable to 
the attainment of the ends of such power, and which are not precluded by 
restrictions and exceptions specified in the Constitution."— Works (Lodge's 
ed.), vol. iii. p. 181. 

Judge Hare sums up the matter by saying, " Congress are sovereign as re- 
gards the objects and within the limits of the Constitution. It may use all 
proper and suitable means for carrying the powers conferred by the Constitu- 



380 THE NATIONAL GOVERNMENT part i 

history of the United States is in a large measure a history of 
the arguments which sought to enlarge or restrict its import. 
One school of statesmen urged that a lax construction would 
practically leave the States at the mercy of the National gov- 
ernment, and remove those checks on the latter which the Con- 
stitution was designed to create ; while the very fact that some 
powers were specifically granted must be taken to import that 
those not specified were withheld, according to the old maxim 
expressio unius exclusio alterius, which Lord Bacon concisely 
explains by saying, "as exception strengthens the force of a law 
in cases not excepted, so enumeration weakens it in cases not 
enumerated." It was replied by the opposite school that to 
limit the powers of the government to those expressly set forth 
in the Constitution would render that instrument unfit to 
serve the purposes of a growing and changing nation, and 
would, by leaving men no legal means of attaining necessary 
but originally uncontemplated aims, provoke revolution and 
work the destruction of the Constitution itself. 1 

This latter contention derived much support from the fact 
that there were certain powers that had not been mentioned in 
the Constitution, but which were so obviously incident to a 
national government that they must be deemed to be raised by 
implication. 2 For instance, the only offences which Congress is 
expressly empowered to punish are treason, the counterfeiting 
of the coin or securities of the government, and piracies and 
other offences against the law of nations. But it was very 
early held that the power to declare other acts to be offences 
against the United States, and punish them as such, existed as 
a necessary appendage to various general powers. So the 

tion into effect. The means best suited at one time may be inadequate at 
another; hence the Deed for vesting a large discretion in ( ongress. . . . 
'Necessary and proper ' are therefore, as regards legislation, nearly if not 
quite synonymous, that being 'necessary ' which is suited to the object and 
calculated to attain the end in view." — American ( 'omtitutional Lav. p. 107. 

1 See the philosophical remarks of Story. J., in Martin v, Hunter's I 
(l Wheat, p. 3(M aqq.). 

- Stress w;i-> also laid on the fact that whereas the Articles of Confederation 

of 17S1 contained ( \rt. ii.) the expression, " Each State retains every power 

and Jurisdiction and righl not expressly delegated to the United States in Con- 
gress assembled," the Constitution merely saya (Amendmenl r.), " rhe powers 
not granted to the United States an i terved to the States respectively or to 
the people," omitting the word " expressly." 



chap, xxxin INTERPKETATION OF CONSTITUTION 381 

power to regulate commerce covered the power to punish 
offences obstructing commerce ; the power to manage the post- 
office included the right to fix penalties on the theft of letters ; 
and, in fact, a whole mass of criminal law grew up as a sanc- 
tion to the civil laws which Congress had been directed to 
pass. 

The three lines along which this development of the implied 
powers of the government has chiefly progressed, have been 
those marked out by the three express powers of taxing and 
borrowing money, of regulating commerce, and of carrying on 
war. Each has produced a progeny of subsidiary powers, some 
of which have in their turn been surrounded by an unexpected 
offspring. Thus from the taxing and borrowing powers there 
sprang the powers to charter a national bank and exempt its 
branches and its notes from taxation by a State (a serious 
restriction on State authority), to create a system of custom- 
houses and revenue cutters, to establish a tariff for the protec- 
tion of native industry. Thus the regulation of commerce has 
been construed to include legislation regarding every kind 
of transportation of goods and passengers, whether from 
abroad or from one State to another, regarding navigation, 
maritime and internal pilotage, maritime contracts, etc., to- 
gether with the control of all navigable waters not situate 
wholly within the limits of one State, the construction of 
all public works helpful to commerce between States or with 
foreign countries, the power to prohibit immigration, and 
finally a power to establish a railway commission and control 
all inter-State traffic. 1 The war power proved itself even more 
elastic. The executive and the majority in Congress found 

1 The case of Gibbons v. Ogden supplies an interesting illustration of the way 
in which this doctrine of implied powers works itself out. The State of New 
York had, in order to reward Fulton and Livingston for their services in intro- 
ducing steamboats, passed a statute giving them an exclusive right of navigat- 
ing the Hudson river with steamers. A case having arisen in which this 
statute was invoked, it was alleged that the statute was invalid, because 
inconsistent with an Act passed by Congress. The question followed, Was 
Congress entitled to pass an Act dealing with the navigation of the Hudson ? 
and it was held that the power to regulate commerce granted to Congress by 
the Constitution implied a power to legislate for navigation on such rivers as 
the Hudson, and that Congress having exercised that power, the action of the 
States on the subject was necessarily excluded. By this decision a vast field 
of legislation was secured to Congress and closed to the States. 



382 THE NATIONAL GOVERNMENT part i 

themselves during the War of Secession obliged to stretch 
this power to cover many acts trenching on the ordinary rights 
of the States and of individuals, till there ensued something 
which, fifty years earlier, would have been deemed to approach 
a suspension of constitutional guarantees in favour of the Fed- 
eral government. 

The courts have occasionally gone even further afield, and 
have professed to deduce certain powers of the legislature from 
the sovereignty inherent in the National government. In its 
last decision on the legal tender question, a majority of the 
Supreme court seems to have placed upon this ground, though 
with special reference to the section enabling Congress to bor- 
row money, its affirmance of that competence of Congress to 
declare paper money a legal tender for debts, which the earlier 
decision of 1871 had referred to the war power. This position 
evoked a controversy of wide scope, for the question what 
sovereignty involves belongs as much to political as to legal 
science, and may be pushed to great lengths upon considera- 
tions with which law proper has little to do. 

The above-mentioned instances of development have been 
worked out by the courts of law. But others are due to the 
action of the executive, or of the executive and Congress con- 
jointly. Thus, in 1803, President Jefferson negotiated and 
completed the purchase of Louisiana, the whole vast posses- 
sions of France beyond the Mississippi. He believed himself 
to be exceeding any powers which the Constitution conferred ; 
and desired to have an amendment to it passed, in order to 
validate his act. But Congress and the people did not share 
his scruples, and the approval of the legislature was deemed 
sufficient ratification for a step of transcendent importance, 
which no provision of the Constitution bore upon. In 1807 
and 1808 Congress laid, by two statutes, an embargo on all 
shipping in United States ports, thereby practically destroying 
the lucrative carrying trade of the New England States. Some 
of these States declared tin 1 Art unconstitutional, arguing that 
a power to regulate commerce was not a power to annihilate it. 
and their courts held it to be void. Congress, however, per- 
sisted for ;i year, and the Act. on which the Supreme court 
never formally pronounced, has been generally deemed within 
the Constitution, though Justice Story (who had warmly op- 



chap, xxxin INTERPRETATION OE CONSTITUTION 383 

posed it when he sat in Congress) remarks that it went to the 
extreme verge. More startling, and more far-reaching in their 
consequences, were the assumptions of Federal authority made 
during the War of Secession by the executive and confirmed, 
some expressly, some tacitly, by Congress and the people. 1 It 
was only a few of these that came before the courts, and the 
courts, in some instances, disapproved them. But the execu- 
tive continued to exert this extraordinary authority. Appeals 
made to the letter of the Constitution by the minority were 
discredited by the fact that they were made by persons sym- 
pathizing with the Secessionists who were seeking to destroy 
it. So many extreme things were done under the pressure of 
necessity that something less than these extreme things came 
to be accepted as a reasonable and moderate compromise. 2 

The best way to give an adequate notion of the extent to 
which the outlines of the Constitution have been filled up by 
interpretation and construction, would be to take some of its 
more important sections and enumerate the decisions upon them 
and the doctrines established by those decisions. This process 
would, however, be irksome to any but a legal reader, and the 
legal reader may do it more agreeably for himself by consult- 
ing one of the annotated editions of the Constitution. He 
will there find that upon some provisions such as Art. i. § 8 
(powers of Congress), Art. i. § 10 (powers denied to the 
States), Art. iii. § 2 (extent of judicial power), there has 
sprung up a perfect forest of judicial constructions, working 

1 See Judge Cooley's History of Michigan, p. 353. The same eminent 
authority observes to me : " The President suspended the writ of habeas corpus. 
The courts held this action unconstitutional (it was subsequently confirmed by 
Congress), but he did not at once deem it safe to obey their judgment. Military 
commissioners, with the approval of the War Department arid the President, 
condemned men to punishment for treason, but the courts released them, hold- 
ing that the guaranties of liberty in the Constitution were as obligatory in war 
as in peace, and should be obeyed by all citizens, and all departments, and 
officers of government (Milligan's case, 4 Wall. 1). The courts held closely to 
the Constitution, but as happens in every civil war, a great many wrongs were 
done in the exercise of the war power for which no redress, or none that was 
adequate, could possibly be had." Inter arrna silent leges must be always to 
some extent true, even under a Constitution like that of the United States. 

2 Such as the suspension of the writ of habeas corpus, the emancipation of 
the slaves of persons aiding in the rebellion, the suspension of the statute of 
limitations, the practical extinction of State banks by increased taxation laid 
on them under the general taxing power. 



384 THE NATIONAL GOVERNMENT iaht i 

out the meaning and application of the few and apparently 
simple words of the original document into a variety of unfore- 
seen results. The same thing has more or less befallen nearly 
every section of the Constitution and of the fifteen amend- 
ments. The process shows no signs of stopping; nor can it, 
for the new conditions of economics and politics bring up new 
problems for solution. But the most important work was that 
done during the first half century, and especially by Chief- 
Justice Marshall during his long tenure of the presidency of 
the Supreme court (1801-1835). It is scarcely an exaggera- 
tion to call him, as an eminent American jurist has done, a 
second maker of the Constitution. I will not borrow the 
phrase which said of Augustus that he found Borne of brick 
and left it of marble, because Marshall's function was not 
to change but to develop. The Constitution was, except of 
course as regards the political scheme of national government, 
which was already well established, rather a ground plan than 
a city. It was, if I may pursue the metaphor, much what the 
site of Washington was at the beginning of this century, a 
symmetrical ground plan for a great city, but with only some 
tall edifices standing here and there among fields and woods. 
Marshall left it what Washington has now become, a splendid 
and commodious capital within whose ample bounds there are 
still some vacant spaces and some mean dwellings, but which, 
built up and beautified as it has been by the taste and wealth 
of its rapidly growing population, is worthy to be the centre 
of a mighty nation. Marshall was, of course, only one among 
seven judges, but his majestic intellect and the elevation of his 
character gave him such an ascendency, that he found himself 
only once in a minority on any constitutional question. 1 His 
work of building up and working out the Constitution was 
accomplished not so much by the decisions he gave as 1- 
judgments in which he expounded the principles of these 
decisions, judgments which for their philosophical breadth, the 
luminous exactness of their reasoning, and the fine political 
sense which pervades them, have never been surpassed and 
Mn that one case (Ogden v,8andera) there was a ban- majority against 

him, and professional opinion now approves the view which ho took. When 

Marshall became Chief-Justice only two decisions on constitutional law had 
been pronounced by the court. Between that time ami his death fifty-one 
weit given. 



chap, xxxiii INTERPRETATION OF CONSTITUTION 385 

rarely equalled by the most famous jurists of modern Europe 
or of ancient Rome. Marshall did not forget the duty of a 
judge to decide nothing more than the suit before him requires, 
but he was wont to set forth the grounds of his decision in 
such a way as to show how they would fall to be applied in 
cases that had not yet arisen. He grasped with extraordinary 
force and clearness the cardinal idea that the creation of a 
national government implies the grant of all such subsidiary 
powers as are requisite to the effectuation of its main powers 
and purposes, but he developed and applied this idea with so 
much prudence and sobriety, never treading on purely political 
ground, never indulging the temptation to theorize, but con- 
tent to follow out as a lawyer the consequences of legal princi- 
ples, that the Constitution seemed not so much to rise under 
his hands to its full stature, as to be gradually unveiled by him 
till it stood revealed in the harmonious perfection of the form 
which its framers had designed. That admirable flexibility 
and capacity for growth which characterize it beyond all other 
rigid or supreme constitutions, is largely due to him, yet not 
more to his courage than to his caution. 1 

We now come to the third question : How is the interpreting 
authority restrained ? If the American Constitution is capable 
of being so developed by this expansive interpretation, what 
security do its written terms offer to the people and to the 
States ? What becomes of the special value claimed for Eigid 
constitutions that they preserve the frame of government 
unimpaired in its essential merits, that they restrain the 
excesses of a transient majority, and (in Federations) the 
aggressions of a central authority? 

The answer is two-fold. In the first place, the interpreting 
authority is, in questions not distinctly political, different from 
the legislature and from the executive, amenable to neither, 
and composed of lawyers imbued with professional habits. 
There is therefore a probability that it will disagree with either 
of them when they attempt to transgress the Constitution, and 
will decline to stretch the law so as to sanction encroachments 

1 Had the Supreme court been in those days possessed by the same spirit of 
strictness and literality which the Judicial Committee of the British Privy 
Council has recently applied to the construction of the British North America 
Act of 1867 (the Act which creates the Constitution of the Canadian Federation) , 
the United States Constitution would never have grown to be what it now is. 
VOL. I 2C 



880 THE NATIONAL GOVERNMENT pa in i 

those authorities may have attempted. In point of fact, there 
have been few cases, and those chiefly cases of urgency dur- 
ing the war, in which the judiciary has been even accused of 
lending itself to the designs of the other organs of government. 
The period when extensive interpretation was most active 
(1800-1835) was also the period when the party opposed to a 
strong central government commanded Congress and the exec- 
utive, and so far from approving the course the court took, 
the dominant party then often complained of it. 

In the second place, there stands above and behind the legis- 
lature, the executive, and the judiciary, another power, that of 
public opinion. The President, Congress, and the courts are 
all, the two former directly, the latter practically, amenable to 
the people, and anxious to be in harmony with the general 
current of its sentiment. If the people approve the way in 
which these authorities are interpreting and using the Consti- 
tution, they go on ; if the people disapprove, they pause, or at 
least slacken their pace. Generally the people have approved 
of such action by the President or Congress as has seemed 
justified by the needs of the time, even though it 111113' have 
gone beyond the letter of the Constitution : generally they 
have approved the conduct of the courts whose legal interpre- 
tation has upheld such legislative or executive action. Public 
opinion sanctioned the purchase of Louisiana, and the still 
bolder action of the executive in the Secession War. It 
approved the Missouri compromise of 1820, which the Supreme 
court thirty-seven years afterwards declared to have been in 
excess of the powers of Congress. But it disapproved the 
Alien and Sedition laws of 1798, and although these statutes 
were never pronounced unconstitutional by the courts, this 
popular censure has prevented any similar legislation since 
that time. 1 The people have, of course, much less exact 
notions of the Constitution than the legal profession or the 
courts. But while they generally desire to see the powers of 
the government so far expanded as to enable it to meet the 
exigencies of the moment, they are sutHciently attached to its 
general doctrines, they sufficiently prize the protection it affords 
them against their own impulses, to censure any interpretation 

1 So it disapproved strongly, in the northern States, oi" the judgments 
delivered by the majority of the Supreme court in the Dred Scott 



chap, xxxin INTERPRETATION OF CONSTITUTION 387 

which palpably departs from the old lines. And their censure 
is, of course, still more severe if the court seems to be acting 
at the bidding of a party. 

A singular result of the importance of constitutional inter- 
pretation in the American government may be here referred to. 
It is this, that the United States legislature has been very 
largely occupied in purely legal discussions. When it is pro- 
posed to legislate on a subject which has been heretofore little 
dealt with, the opponents of a measure have two lines of de- 
fence. They may, as Englishmen would in a like case, argue 
that the measure is inexpedient. But they may also, which 
Englishmen cannot, argue that it is unconstitutional, i.e. 
illegal, because transcending the powers of Congress. This is 
a question fit to be raised in Congress, not only as regards 
matters with which, as being purely political, the courts of law 
will refuse to interfere, but as regards all other matters also, 
because since a decision on the constitutionality of a statute 
can never be obtained from the judges by anticipation, the leg- 
islature ought to consider whether they are acting within their 
competence. And it is a question on which a stronger case 
can often be made, and made with less exertion, than on the 
issue whether the measure be substantially expedient. Hence 
it is usually put in the fore-front of the battle, and argued 
with great vigour and acumen by leaders who are probably 
more ingenious as lawyers than they are far-sighted as states- 
men. 

A further consequence of this habit is pointed out by one of 
the most thoughtful among American constitutional writers. 
Legal issues are apt to dwarf and obscure the more substan- 
tially important issues of principle and policy, distracting from 
these latter the attention of the nation as well as the skill of 
congressional debaters. 

" The English legislature," says Judge Hare, " is free to fol- 
low any course that will promote the welfare of the State, and 
the inquiry is not, 'Has Parliament power to pass the Act? ' 
but, 'Is it consistent with principle, and such as the circum- 
stances demand ? ' These are the material points, and if the 
public mind is satisfied as to them there is no further contro- 
versy. In the United States, on the other hand, the question 
primarily is one of power, and in the refined and subtle dis- 



388 THE NATIONAL GOVERNMENT part i 

cussion which ensues, right is too often lost sight of or treated 
as if it were synonymous with might. It is taken for granted 
that what the Constitution permits it also approves, and that 
measures which are legal cannot be contrary to morals." 

The interpretation of the Constitution has at times become 
so momentous as to furnish a basis for the formation of politi- 
cal parties ; and the existence of parties divided upon such 
questions has of course stimulated the interest with which 
points of legal interpretation have been watched and can- 
vassed. Soon after the formation of the National government 
in 1789 two parties grew up, one advocating a strong central 
authority, the other championing the rights of the States. Of 
these parties the former naturally came to insist on a liberal, 
an expansive, perhaps a lax construction of the words of the 
Constitution, because the more wide is the meaning placed 
upon its grant of powers, so much the wider are those powers 
themselves. The latter party, on the other hand, was acting 
in protection both of the States and of the individual citizen 
against the central government, when it limited by a strict and 
narrow interpretation of the fundamental instrument the pow- 
ers which that instrument conveyed. The distinction which 
began in those early days has never since vanished. There 
has always been a party professing itself disposed to favour 
the central government, and therefore a party of broad construc- 
tion. There has always been a party claiming that it aimed at 
protecting the rights of the States, and therefore a party of strict 
construction. Some writers have gone so far as to deem these 
different views of interpretation to be the foundation of all the 
political parties that have divided America. This view, how- 
ever, inverts the facts. It is not because men have differed in 
their reading of the Constitution that they have advocated or 
opposed an extension of Federal powers ; it is their attitude on 
this substantial issue that has determined their attitude on the 
verbal one. Moreover, the two great parties have several 
times changed sides on the very question of* interpretation. 
The purchase of Louisiana and the Embargo acts were the 
work of the Strict Constructionists, while it was the Loose 
Constructionist party which protested against the latter meas- 
ure, and which, at the Hartford Convention o\' L814, advanced 
doctrines of State rights almost amounting to those Bubse- 



chap, xxxin INTERPRETATION OF CONSTITUTION 389 

quently asserted by South Carolina in 1832 and by the Seces- 
sionists of 1861. Parties in America, as in most countries, 
have followed their temporary interest; and if that interest 
happened to differ from some traditional party doctrine, they 
have explained the latter away. Whenever there has been a 
serious party conflict, it has been in reality a conflict over 
some living and practical issue, and only in form a debate upon 
canons of legal interpretation. What is remarkable, though 
natural enough in a country governed by a written instrument, 
is that every controversy has got involved with questions of 
constitutional construction. When it was proposed to exert 
some power of Congress, as for instance to charter a national 
bank, to grant money for internal improvements, to enact a 
protective tariff, the opponents of these schemes could plausi- 
bly argue, and therefore of course did argue, that they were 
unconstitutional. So any suggested interference with slavery 
in States or Territories was immediately declared to violate 
the State rights which the Constitution guaranteed. Thus 
every serious question came to be fought as a constitutional 
question. But as regards most questions, and certainly as 
regards the great majority of the party combatants, men did 
not attack or defend a proposal because they held it legally 
unsound or sound on the true construction of the Constitution, 
but alleged it to be constitutionally wrong or right because 
they thought the welfare of the country, or at least their party 
interests, to be involved. Constitutional interpretation was a 
pretext rather than a cause, a matter of form rather than of 
substance. 

The results were both good and evil. They were good in so 
far as they made both parties profess themselves defenders of 
the Constitution, zealous only that it should be interpreted 
aright; as they familiarized the people with its provisions, 
and made them vigilant critics of every legislative or execu- 
tive act which could affect its working. They were evil in 
distracting public attention from real problems to the legal 
aspect of those problems, and in cultivating a habit of casu- 
istry which threatened the integrity of the Constitution itself. 

Since the Civil War there has been much less of this casu- 
istry because there have been fewer occasions for it, the Broad 
Construction view of the Constitution having practically pre- 



390 THE NATIONAL GOVERNMENT i-akt i 

vailed — prevailed so far that the Supreme court now holds 
that the power of Congress to make paper money legal tender 
is incident to the sovereignty of the National government, and 
that a Democratic House of Kepresentatives passes a bill 
giving a Federal commission vast powers over all the railways 
which pass through more than one State. There is still a 
party inclined to strict construction, but the strictness which 
it upholds would have been deemed lax by the Broad Con- 
structionists of thirty years ago. The interpretation which 
has thus stretched the Constitution to cover powers once un- 
dreamt of, may be deemed a dangerous resource. But it must 
be remembered that even the constitutions we call Rigid must 
make their choice between being bent or being broken. The 
Americans have more than once bent their Constitution in 
order that they might not be forced to break it. 



CHAPTER XXXIV 

THE DEVELOPMENT OF THE CONSTITUTION BY USAGE 

There is yet another way in which the Constitution has been 
developed. This is by laying down rules on matters which are 
within its general scope, but have not been dealt with by its 
words, by the creation of machinery which it has not provided 
for the attainment of objects it contemplates, or, to vary the 
metaphor, by ploughing and planting ground which, though 
included within the boundaries of the Constitution, was left 
waste by those who drew up the original instrument. 

Although the Constitution is curiously minute upon some 
comparatively small points, such as the qualifications of members 
of Congress and the official record of their votes, it passes over 
in silence many branches of political action, many details essen- 
tial to every government. Some may have been forgotten, but 
some were purposely omitted, because the Convention could 
not agree upon them, or because they would have provoked 
opposition in the ratifying conventions, or because they were 
thought unsuited to a document which it' was desirable to draft 
concisely and to preserve as far as possible unaltered. This 
was wise and indeed necessary, but it threw a great responsi- 
bility upon those who had to work the government which the 
Constitution created. They found nothing within the four 
corners of the instrument to guide them on points whose grav- 
ity was perceived as soon as they had to be settled in practice. 
Many of such points could not be dealt with by interpreta- 
tion or construction, however liberally extensive it might be, 
because there was nothing in the words of the Constitution 
from which such construction could start, and because they 
were in some instances matters which, though important, could 
not be based upon principle, but must be settled by an arbitrary 
determination. 



392 THE NATIONAL GOVERNMENT part i 

Their settlement, which began with the first Congress, has 
been effected in two ways, by Congressional legislation and by 
usage. 

Congress was empowered by the Constitution to pass statutes 
on certain prescribed topics. On many other topics not spe- 
cially named, but within its general powers, statutes were evi- 
dently needed. For instance, the whole subject of Federal 
taxation, direct and indirect, the establishment of Federal 
courts, inferior to the Supreme court, and the assignment of 
particular kinds and degrees of jurisdiction to each class of 
courts, the organization of the civil, military, and naval services 
of the country, the administration of Indian affairs and of the 
Territories, the rules to be observed in the elections of Presi- 
dents and senators, these and many other matters of high im- 
port are regulated by statutes, statutes which Congress can of 
course change but which, in their main features, have been not 
greatly changed since their first enactment. Although such 
statutes cannot be called parts of the Constitution in the same 
sense as the interpretations judicially placed upon it, for these 
latter have (subject to the possibility of their reversal) become 
practically incorporated with its original text, still they have 
given to its working a character and direction which must be 
borne in mind in discussing it, and which have, in some in- 
stances, produced results opposed to the ideas of its framers. To 
take a recent instance, the passing of the Inter-State Com- 
merce Act, which regulates all the greater railways over the 
whole United States, is an assertion of Federal authority over 
numerous and powerful corporations chartered by and serving 
the various States, which gives a new aspect and significance 
to the clause in the Constitution empowering Congress to regu- 
late commerce. Legal interpretation held that clause to be 
sufficiently wide to enable Congress to legislate on inter-State 
railways; but when Congress actually exerted its power in en- 
acting this statute a further step, and a long one, was taken 
towards bringing the organs of transportation under national 
control. 1 Legislation, therefore, though it cannot in strictness 

i The recognition that the Constitution empowers Congress to deal with a 

given subject docs nut imply that every detail o( the Act dealing therewith is 

above objection. Although prima facie Congress, when competent to legislate 

on a subject, is tree to choose its means, still it remains open to any one to 
Challenge the constitutionality of any particular provisions in a statute. 



chap, xxxiv DEVELOPMENT BY USAGE 393 

enlarge the frontiers fixed by the Constitution, can give to cer- 
tain provinces lying within those frontiers far greater impor- 
tance than they formerly possessed, and by so doing, can 
substantially change the character of the government. It 
cannot engender a new power, but it can turn an old one in a 
new direction, and call a dormant one into momentous activity. 

Next as to usage. Custom, which is a law-producing agency 
in every department, is specially busy in matters which per- 
tain to the practical conduct of government. Understandings 
and conventions are in modern practice no less essential to 
the smooth working of the English Constitution, than are the 
principles enunciated in the Bill of Rights. Now understand- 
ings are merely long-established usages, sanctioned by no stat- 
ute, often too vague to admit of precise statement, 1 yet in 
some instances deemed so binding that a breach of them 
would damage the character of a statesman or a ministry just 
as much as the transgression of a statute. In the United 
States there are fewer such understandings than in England, 
because under a Constitution drawn out in one fundamental 
document everybody is more apt to stand upon his strict legal 
rights, and the spirit of institutions departs less widely from 
their formal character. Nevertheless some of those features 
of American government to which its character is chiefly due, 
and which recur most frequently in its daily working, rest 
neither upon the Constitution nor upon any statute, but upon 
usage alone. Here are some instances. 

The presidential electors have by usage and by usage only 
lost the right the CoDstitution gave them of exercising their 
discretion in the choice of a chief magistrate. 

The President is not re-elected more than once, though the 
Constitution places no restriction whatever on re-eligibility. 2 

The President uses his veto more freely than he did at first, 
and for a wider range of purposes. 

1 For instance, it is impossible to state precisely the practical (as distin- 
guished from the legal) rights of the House of Lords to reject bills passed by 
the House of Commons, or the duty of the Crown when a Cabinet makes some 
very unusual request ; although it is admitted that as a rule the Lords ought 
to yield to the Commons and the Crown to be guided by the advice of its 
ministers. 

2 See ante, Chap. V. The Federalist (No. lxviii.) says that the President 
will be and ought to be re-elected as often as the people think him worthy of 
their confidence. 



394 THE NATIONAL GOVERNMENT 



The Senate now never exercises its undoubted power of re- 
fusing to confirm the appointments made by the President to 
cabinet offices. 

The President is permitted to remove, without asking the 
consent of the Senate, officials to whose appointment the con- 
sent of the Senate is necessary. This was for a time regulated 
by statute, but the statute having been repealed the old usage 
has revived. (See Chapter VI.) 

Both the House and the Senate conduct their legislation by 
means of standing committees. This vital peculiarity of the 
American system of government has no firmer basis than the 
standing orders of each House, which can be repealed at any 
moment, but have been maintained for many years. 

The Speaker of the House is by a similar practice entrusted 
with the profoundly important power of nominating all the 
House committees. 

The chairmen of the chief committees of both Houses, which 
control the great departments of State {e.g. foreign affairs, 
navy, justice, finance), have practically become an additional 
set of ministers for those departments. 

The custom of going into caucus, by which the parties in each 
of the two Houses of Congress determine their action, and the 
obligation on individual members to obey the decision of the 
caucus meeting, are mere habits or understandings, without legal 
sanction. So is the right claimed by the senators from a State 
to control the Federal patronage of that State. So is the usage 
that appropriation bills shall be presented to the House. 

The rule that a member of Congress must be chosen from 
the district, as well as from the State, in which he resides, 
rests on no Federal enactment ; indeed, neither Congress nor 
any State legislature would be entitled thus to narrow the 
liberty of choice which the words of the Constitution imply. 

Jackson introduced, and succeeding Presidents continued the 
practice of dismissing Federal officials belonging to the oppo- 
site party, and appointing none but adherents of their own 
party to the vacant places. This is the so-called Spoils 
System, which, having been applied also to State and municipal 
offices, has been made the corner-stone of "practical polities" 
in America. The Constitution is nowise answerable for it 
and legislation only partially. 



chap, xxxiv DEVELOPMENT BY USAGE 395 

Neither in English, law nor in American is there anything 
regarding the re-eligibility of a member of the popular cham- 
ber ; nor can it be said that usage has established in either 
country any broad general rule on the subject. But whereas 
the English tendency has been to re-elect a member unless 
there is some positive reason for getting rid of him, in many 
parts of America men are disposed the other way, and refuse 
to re-elect him just because he has had his turn already. Any 
one can understand what a difference this makes in the charac- 
ter of the chamber. 

We see, then, that several salient features of the present 
American government, such as the popular election of the 
President, the influence of senators and congressmen over 
patronage, the immense power of the Speaker, the Spoils sys- 
tem, are due to usages which have sprung up round the Con- 
stitution and profoundly affected its working, but which are 
not parts of the Constitution, nor necessarily attributable to 
any specific provision which it contains. The most remark- 
able instance of all, the choice of presidential candidates 
by the great parties assembled in their national conventions, 
will be fully considered in a later chapter. 

One of the changes which the last seventy years have 
brought about is so remarkable as to deserve special mention. 
The Constitution contains no provisions regarding the electoral 
franchise in congressional elections save the three following : — 

That the franchise shall in every State be the same as that 
by which the members of the " most numerous branch of the 
State legislature" are chosen (Art. i. § 2). 

That when any male citizens over twenty-one years of age 
are excluded by any State from the franchise (except for crime) 
the basis of representation in Congress of that State shall be 
proportionately reduced (Am. xiv., 1868). 

That "the right of citizens of the United States to vote 
shall not be denied or abridged on account of race, colour, or 
previous condition of servitude " (Am. xv., 1870) . 

Subject to these conditions every State may regulate the 
electoral franchise as it pleases. 

In the first days of the Constitution the suffrage was in 
nearly all States limited by various conditions (e.g. prop- 
erty qualification, length of residence, etc.) which excluded, 



396 THE NATIONAL GOVERNMENT part i 

or might have excluded, though in some States the proportion 
of very poor people was small, a considerable number of the 
free inhabitants. At present the suffrage is in every State 
practically universal. It had become so in the Free States ! 
even before the war. Here is an advance towards pure democ- 
racy effected without the action of the national legislature, but 
solely by the legislation of the several States, a legislation 
which, as it may be changed at any moment, is, so far as the 
national government is concerned, mere custom. And of this 
great step, modifying profoundly the colour and character of 
the government, there is no trace in the words of the Con- 
stitution other than the provisions of the fourteenth and fif- 
teenth amendments introduced for the benefit of the liberated 
negroes. 

It is natural, it is indeed inevitable, that there should be in 
every country such a parasitic growth of usages and conven- 
tions round the solid legal framework of government. But 
must not the result of such a growth be different where a 
rigid constitution exists from what it is in countries where the 
constitution is flexible ? In England usages of the kind de- 
scribed become inwoven with the law of the country as settled 
by statutes and decisions, and modify that law. Cases come 
before a court in which a usage is recognized and thereby 
obtains a sort of legal sanction. Statutes are passed in which 
an existing usage is taken for granted, and which therefore 
harmonize with it. Thus the always changing Constitution 
becomes interpenetrated by custom. Custom is in fact the first 
stage through which a rule passes before it is embodied in 
binding law. But in America, where the fundamental law 
cannot readily be, and is in fact very rarely altered, may we 
not expect a conflict, or at least a want of harmony, between 
law and custom, due to the constant growth of the one and the 
immutability of the other ? 

In examining this point one must distinguish between sub- 
jects on which the Constitution is silent and subjects on which 
it speaks. As regards the former there is little difficulty. 
Usage and legislation may expand the Constitution in what 
way they please, subject only to the control of publie opinion. 

1 Save that in many of them persons of colour were placed at a disadvan- 
tage. 



chap, xxxiv DEVELOPMENT BY USAGE 397 

The courts of law will not interfere, because no provision of 
the Constitution is violated ; and even where it may be 
thought that an act of Congress or of the executive is opposed 
to the spirit of the Constitution, still if it falls within the 
range of the discretion which these authorities have received, 
it will not be questioned by the judges. 1 

If, on the other hand, either congressional legislation or 
usage begins to trench on ground which the Constitution ex- 
pressly covers, the question at once arises whether such legis- 
lation is valid, or whether an act done in conformity with 
such usage is legal. Questions of this kind do not always 
come before the courts, and if they do not, the presumption 
is in favour of whatever act has been done by Congress or 
by any legally constituted authority. When, however, such a 
question is susceptible of judicial determination and is actually 
brought before a tribunal, the tribunal is disposed rather to 
support than to treat as null the act done. Applying that 
expansive interpretation which has prevailed since the war as 
it prevailed in the days of Chief-Justice Marshall, the Supreme 
court is apt to find grounds for moving in the direction which 
it perceives public opinion to have taken, and for putting on 
the words of the Constitution a sense which legalizes what 
Congress has enacted or custom approved. When this takes 
place things proceed smoothly. The change which circum- 
stances call for is made gently, and is controlled, perhaps 
modified, in its operation. 

But sometimes the courts feel bound to declare some statute, 

1 " It is an axiom in our jurisprudence that an Act of Congress is not to be 
pronounced unconstitutional unless the defect of power to pass it is so clear as 
to admit of no doubt. Every doubt is to be resolved in favour of the validity 
of the law." — Swayne, J., in United States v. Rhodes, 1 Abb. U. S. 49. 

An interesting illustration is supplied by a very recent case which arose in 
the efforts made to check the evils arising from the lotteries established in 
Louisiana. Congress, being unable to strike at the lottery in Louisiana itself, 
passed a statute forbidding the post-office to carry newspapers containing 
lottery advertisements (since it was by these that mischief was done over the 
rest of the Union) , and imposing a penalty on any one posting lottery adver- 
tisements in breach of the statute. A newspaper proprietor arrested for such 
breach carried his case to the Supreme court, alleging the statute to be 
unconstitutional because inconsistent with the first amendment to the Consti- 
tution. The court however unanimously held (1892) that that amendment 
did not apply, and supported the right of Congress to use the control of the 
post-office as a means of dealing with the harm done by lotteries ; and public 
opinion heartily welcomed this decision. 



398 THE NATIONAL GOVERNMENT part i 

or executive act done in pursuance of usage, contrary to the 
Constitution. What happens ? In theory the judicial deter- 
mination is conclusive, and ought to check any further progress 
in the path which has been pronounced unconstitutional. But 
whether this result follows will in practice depend on the cir- 
cumstances of the moment. If the case is not urgent, if there 
is no strong popular impulse behind Congress or the President, 
no paramount need for the usage which had sprung up and 
is now disapproved, the decision of the courts will be acqui- 
esced in ; and whatever tendency towards change exists will 
seek some other channel where no constitutional obstacle bars 
its course. But if the needs of the time be pressing, courts 
and Constitution may have to give way. JSalus reipublicae lex 
suprema. Above that supreme written law stands the safety 
of the commonwealth, which will be secured, if possible in 
conformity with the Constitution ; but if that be not possi- 
ble, then by evading, or even by overriding the Constitution. 1 
This is what happened in the Civil War, when men said that 
they would break the Constitution in order to preserve it. 

Attempts to disobey the Constitution have been rare, because 
the fear of clashing with it has arrested many mischievous 
proposals in their earlier stages, while the influence of public 
opinion has averted possible collisions by leading the courts to 
lend their ultimate sanction to measures or usages which, had 
they come under review at their first appearance, might have 
been pronounced unconstitutional. 2 That collisions have been 
rare is good evidence of the political wisdom of American 
statesmen and lawyers. But politicians in other countries will 

1 In a remarkable letter -written to Mr. Hodges (4th April 1864), President 
Lincoln said : " My oath to preserve the Constitution imposed on me the duty of 
preserving by every indispensable means that government, that nation, of which 
the Constitution was the organic law. "Was it possible to lose the nation and 
yet preserve the Constitution? By general law life and limb must be pro- 
tected, yet often a limb must be amputated to save a life, but a life is never 

wisely given to save a limb. 1 Celt that measures, otherwise unconstitutional, 
mighl become lawful by becoming indispensable to the preservation of the 

Constitution through the preservation of the nation. Right or wrong 1 as- 
sumed this -round, and now avow it. 1 could not feel that to the best of my 
ability 1 had even tried to preserve the Constitution, if, to save slavery, or any 

minor matter, I should permit the wreck of government, country, and Consti- 
tution altogether." 

a Such as the expenditure of vast sums on "internal improvements" and 
t he assumption of wide powers over internal communications. 



chap, xxxiv DEVELOPMENT BY USAGE 399 

err if they suppose that the existence of a rigid or supreme 
constitution is enough to avert collisions, or to secure the vic- 
tory of the fundamental instrument. A rigid constitution 
resembles, not some cliff of Norwegian gneiss which bears for 
centuries unchanged the lash of Atlantic billows, but rather a 
sea-wall, such as guards the seaside promenade of an English 
town, whose smooth surface resists the ordinary waves and 
currents of the Channel but may be breached or washed away 
by some tremendous tempest. The American Constitution has 
stood unbroken, because America has never seen, as some 
European countries have seen, angry multitudes or military 
tyrants bent on destroying the institutions which barred the 
course of their passions or ambition. And it has also stood 
because it has submitted to a process of constant, though 
sometimes scarcely perceptible, change which has adapted it 
to the conditions of a new age. 

The solemn determination of a people enacting a fundamental 
law by which they and their descendants shall be governed 
cannot prevent that law, however great the reverence they 
continue to profess for it, from being worn away in one part, 
enlarged in another, modified in a third, by the ceaseless action 
of influences playing upon the individuals who compose the 
people. Thus the American Constitution has necessarily 
changed as the nation has changed, has changed in the spirit 
with which men regard it, and therefore in its own spirit. To 
use the words of the eminent constitutional lawyer whom I 
have more than once quoted: "We may think/ 5 says Judge 
Cooley, " that we have the Constitution all before us ; but for 
practical purposes the Constitution is that which the govern- 
ment, in its several departments, and the people in the per- 
formance of their duties as citizens, recognize and respect as 
such ; and nothing else is. . . . Cervantes says : Every one is 
the son of his own works. This is more emphatically true of 
an instrument of government than it can possibly be of a nat- 
ural person. What it takes to itself, though at first unwar- 
rantable, helps to make it over into a new instrument of 
government, and it represents at last the acts done under it." 



CHAPTER XXXV 

THE RESULTS OF CONSTITUTIONAL DEVELOPMENT 

We have seen that the American Constitution has changed, 
is changing, and by the law of its existence must continue to 
change, in its substance and practical working even when its 
words remain the same. "Time and habit," said Washington, 
"are at least as necessary to fix the true character of govern- 
ments as of other human institutions : " * and while habit fixes 
some things, time remoulds others. 

It remains to ask what has been the general result of the 
changes it has suffered, and what light an examination of its 
history, in this respect, throws upon the probable future of the 
instrument and on the worth of Rigid or Supreme constitu- 
tions in general. 

The Constitution was avowedly created as an instrument of 
checks and balances. Each branch of the National government 
was to restrain the others, and maintain the equipoise of the 
whole. The legislature was to balance the executive, and the 
judiciary both. The two houses of the legislature were to 
balance one another. The National government, taking all its 
branches together, was balanced against the State governments. 
As this equilibrium was placed under the protection of a docu- 
ment, unchangeable save by the people them selves, no one of 
the branches of the National government lias been able to 
absorb or override the others, as the House of Commons and 
the Cabinet, itself a child of the House of Commons, have in 
England overridden and subjected the Crown and the House 
of Lords. Each branch maintains its independence, and can. 
within certain limits, defy the others. 

Bu1 there is among political bodies ami offices (i.e. the per- 
sons who from time to time fill the same office) of necessity a 

1 Farewell Address, 17th September (796, 
400 



chap, xxxv KESULTS OF DEVELOPMENT 401 

constant strife, a struggle for existence similar to that which 
Mr. Darwin has shown to exist among plants and animals ; 
and as in the case of plants and animals so also in the politi- 
cal sphere this struggle stimulates each body or office to exert 
its utmost force for its own preservation, and to develop its 
aptitudes in any direction wherein development is possible. 
Each branch of the American government has striven to ex- 
tend its range and its powers ; each has advanced in certain 
directions, but in others has been restrained by the equal or 
stronger pressure of other branches. I shall attempt to state 
the chief differences perceptible between the ideas which men 
entertained regarding the various bodies and offices of the 
government when they first entered life, and the aspect they 
now wear to the nation. 

The President has developed a capacity for becoming, in 
moments of national peril, something like a Eoman dictator. 
He is in quiet times no stronger than he was at first, possibly 
weaker. Congress has in some respects encroached on him, yet 
his office has shown that it may, in the hands of a trusted 
leader and at the call of a sudden necessity, rise to a tremen- 
dous height. 

The ministers of the President have not become more im- 
portant either singly or collectively as a cabinet. Cut off from 
the legislature on one side, and from the people on the other, 
they have been a mere appendage to the President. 

The Senate has come to press heavily on the executive, and 
at the same time has developed legislative functions which, 
though contemplated in the Constitution, were comparatively 
rudimentary in the older days. It has, in the judgment of 
American publicists, grown relatively stronger than it then 
was. 

The Vice-President of the United States has become even 
more insignificant than the Constitution seemed to make 
him. 

On the other hand, the Speaker of the House of Represen- 
tatives, whom the Constitution mentions only once, and on 
whom it bestows no powers, has now secured one of the leading 
parts in the piece, and can affect the course of legislation more 
than any other single person. 

An oligarchy of chairmen of the leading committees has 

VOL. I 2D 



402 THE NATIONAL GOVERNMENT part i 

sprung up in the House of Kepresentatives as a consequence of 
the increasing demands on its time and of the working of the 
committee system. 

The Judiciary was deemed to be making large strides during 
the first forty years, because it established its claim to powers 
which, though doubtless really granted, had been but faintly 
apprehended in 1789. After 1830 the development of those 
powers advanced more slowly. But the position which the 
Supreme court has taken in the scheme of government, if it be 
not greater than the framers of the Constitution would have 
wished, is yet greater than they foresaw. 

Although some of these changes are considerable, they are 
far smaller than those which England has seen pass over her 
Government since 1789. So far, therefore, the rigid Constitu- 
tion has maintained a sort of equilibrium between the various 
powers, whereas that which was then supposed to exist in 
England between the king, the peers, the House of Commons, 
and the people (i.e. the electors) has vanished irrecoverably. 

In the other struggle that has gone on in America, that be- 
tween the National government and the States, the results 
have been still more considerable, though the process of change 
has sometimes been interrupted. During the first few decades 
after 1789 the States, in spite of a steady and often angry re- 
sistance, sometimes backed by threats of secession, found them- 
selves more and more entangled in the network of Federal 
powers which sometimes Congress, sometimes the President, 
sometimes the Judiciary, as the expounder of the Constitution, 
flung over them. Provisions of the Constitution whose bear- 
ing had been inadequately realized in the first instance were 
put in force against a State, and when once put in force became 
precedents for the future. ( It is instructive to observe that 
this was done by both of the great national parties, by 
those who defended State rights and preached State sover- 
eignty as well as by the advocates of a strong central govern- 
ment. For the former, when they saw the opportunity of 
effecting by means of the central legislative or executive 
power an object of immediate party importance, did not hesi- 
tate to put in force that central power, forgetful or heedless of 
the example they were setting. 

It is for this reason that the process by which the National 



chap, xxxv RESULTS OF DEVELOPMENT 403 

government has grown may be called a natural one. A politi- 
cal force has, like a heated gas, a natural tendency to expan- 
sion, a tendency which works even apart from the knowledge 
and intentions of those through whom it works. In the proc- 
ess of expansion such a force may meet, and may be checked 
or driven back by a stronger force. The expansive force of 
the National government proved ultimately stronger than the 
force of the States, so the centralizing tendency prevailed. 
And it prevailed not so much by the conscious purpose of the 
party disposed to favour it, as through the inherent elements 
of strength which it possessed, and the favouring conditions 
amid which it acted, elements and conditions largely irrespec- 
tive of either political party, and operative under the suprem- 
acy of the one as well as of the other. Now and then the 
centralizing process was checked. Georgia defied the Supreme 
court in 1830-32, and was not made to bend because the execu- 
tive sided with her. South Carolina defied Congress and the 
President in 1832, and the issue was settled by a compromise. 
Acute foreign observers then and often during the period that 
followed predicted the dissolution of the Union. For some 
years before the outbreak of the Civil War the tie of obedience 
to the National government was palpably loosened over a 
large part of the country. But during and after the war the 
former tendency resumed its action, swifter and more potent 
than before. 

A critic may object to the view here presented by remarking 
that the struggle between the National government and the 
States has not, as in the case of the struggles between differ- 
ent branches of the National government, proceeded merely by 
the natural development of the Constitution, but has been 
accelerated by specific changes in the Constitution, viz. those 
made by the three latest amendments. 

This is true. But the dominance of the centralizing tenden- 
cies is not wholly or even mainly due to those amendments. It 
had begun before them. It would have come about, though 
less completely, without them. It has been due not only to 
these amendments but also — 

To the extensive interpretation by the judiciary of the 
powers which the Constitution vests in the National 
government. 



404 THE NATIONAL GOVERNMENT part i 

To the passing by Congress of statutes on topics not exclu- 
sively reserved to the States, statutes which have sensibly 
narrowed the field of State action. 
To exertions of executive power Avhich, having been approved 
by the people, and not condemned by -the courts, have 
passed into precedents. 
These have been the modes in which the centralizing 'ten- 
dency has shown itself and prevailed. What have been the 
underlying causes ? 

They belong to history. They are partly economical, partly 
moral. Steam and electricity have knit the various parts of 
the country closely together, have made each State and group 
of States more dependent on its neighbours, have added to the 
matters in which the whole country benefits by joint action 
and uniform legislation. The power of the National govern- 
ment to stimulate or depress commerce and industries by tariff 
legislation has given it a wide control over the material pros- 
perity of part of the Union, till " the people, and especially 
the trading and manufacturing classes, came to look more and 
more to the national capital for what enlists their interests, 
and less and less to the capital of their own State. ... It is 
the nation and not the State that is present to the imagination 
of the citizens as sovereign, even in the States of Jefferson and 
Calhoun. . . . The Constitution as it is, and the Union as it 
was, can no longer be the party watchword. There is a new 
Union, with new grand features, but with new engrafted 
evils." * There has grown up a pride in the national flag, ami 
in the national government as representing national unity. In 
the North there is gratitude to that government as the power 
that saved the Union in the Civil War ; in the South a sense 
of the strength which Congress and the President then exerted ; 
in both a recollection of the immense scope which the war 
powers took and might take again. All over the country there 
is a great army of Federal office-holders who look to Washing- 
ton as the centre of their hopes and tears. As the modes in 
and by which these and other similar causes can work are 
evidently not exhausted, it is clear that the development of the 
Constitution as between the nation ami tin 1 States lias not yet 
stopped, ami present appearances suggest that the centralizing 
tendency will continue to prevail. 

1 Cooley, History of Michigan. 



chap, xxxv RESULTS OF DEVELOPMENT 405 

How does the inquiry we have been conducting effect the 
judgment to be passed upon the worth of rigid constitutions, 
i.e. of written instruments of government emanating from an 
authority superior to that of the ordinary legislature ? The 
question is a grave one for European countries, which seem to 
be passing from the older or Flexible to the newer or Eigid 
type of constitutions. 

A European reader who has followed the facts stated in the 
last foregoing chapters may be inclined to dismiss the question 
summarily. "Rigid Constitutions," he will say, "are on your 
own showing a delusion and a sham. The American Constitu- 
tion has been changed, is being changed, will continue to be 
changed, by interpretation and usage. It is not what it was 
even thirty years ago ; who can tell what it will be thirty years 
hence ? If its transformations are less swift than those of the 
English Constitution, this is only because England has not 
even yet so completely democratized herself as America had 
done half a century ago, and therefore there has been more 
room for change in England. If the existence of the funda- 
mental Constitution did not prevent violent stretches of execu- 
tive power during the war, and of legislative power after as 
well as during the war, will not its paper guarantees be trodden 
under foot more recklessly the next time a crisis arrives ? It 
was intended to protect not only the States against the central 
government, not only each branch of the government against 
the other branches, but the people against themselves, that is 
to say, the people as a whole against the impulses of a tran- 
sient majority. What becomes of this protection when you 
admit that even the Supreme court is influenced by public 
opinion, which is only another name for the reigning sentiment 
of the moment ? If every one of the checks and safeguards 
contained in the document may be overset, if all taken together 
may be overset, where are the boasted guarantees of the fun- 
damental laws ? Evidently it stands only because it is not at 
present assailed. It is like the walls of Jericho, tall and 
stately, but ready to fall at the blast of the trumpet. It is 
worse than a delusion : it is a snare ; for it lulls the nation into 
a fancied security, seeming to promise a stability for the insti- 
tutions of government, and a respect for the rights of the indi- 
vidual, which are in fact baseless. A flexible constitution like 



406 THE NATIONAL GOVERNMENT part i 

that of England is really safer, because it practises no similar 
deceit, but by warning good citizens that the welfare of the 
commonwealth depends always on themselves and themselves 
only, stimulates them to constant efforts for the maintenance 
of their own rights and the deepest interests of society." 

This statement of the case errs as much in one direction by 
undervaluing, as common opinion errs by overvaluing, the sta- 
bility of rigid constitutions. They do not perform all that the 
solemnity of their wording promises. But they are not there- 
fore useless. 

To expect any form of words, however weightily conceived, 
with whatever sanctions enacted, permanently to restrain the 
passions and interests of men is to expect the impossible. 
Beyond a certain point, you cannot protect the people against 
themselves any more than you can, to use a familiar American 
expression, lift yourself from the ground by your own boot- 
straps. Laws sanctioned by the overwhelming physical power 
of a despot, laws sanctioned by supernatural terrors whose 
reality no one doubted, have failed to restrain those passions 
in ages of slavery and superstition. The world is not so much 
advanced that in this age laws, even the best and most vener- 
able laws, will of themselves command obedience. Constitu- 
tions which in quiet times change gradually, peacefully, almost 
imperceptibly, must in times of revolution be changed more 
boldly, some provisions being sacrificed for the sake of the 
rest, as mariners throw overboard part of the cargo in a storm 
in order to save the other part with the ship herself. To cling 
to the letter of a Constitution when the welfare of the country 
for whose sake the Constitution exists is at stake, would be to 
seek to preserve life at the cost of all that makes life worth 
having — propter vitam vivendi perdere causas. 

Nevertheless the rigid Constitution of the United States has 
rendered, and renders now, inestimable services. It opposes 
obstacles to rash and hasty change. It secures time for deliber- 
ation. It forces the people to think seriously before they alter 
it or pardon a transgression of it. It makes legislatures and 
statesmen slow to overpass their legal powers, slow even to 
propose measures which the Constitution seems to disapprove. 
It tends to render the inevitable process of modification gradual 
and tentative, the result of admitted and growing necessities 



chap, xxxv RESULTS OF DEVELOPMENT 407 

rather than of restless impatience. It altogether prevents some 
changes which a temporary majority may clamour for, but 
which will have ceased to be demanded before the barriers 
interposed by the Constitution have been overcome. 

It does still more than this. It forms the mind and temper of 
the people. It trains them to habits of legality. It strengthens 
their conservative instincts, their sense of the value of stability 
and permanence in political arrangements. 1 It makes them feel 
that to comprehend their supreme instrument of government 
is a personal duty, incumbent on each one of them. It famil- 
iarizes them with, it attaches them by ties of pride and rever- 
ence to, those fundamental truths on which the Constitution is 
based. 

These are enormous services to render to any free country, 
but above all to one which, more than any other, is governed 
not by the men of rank or wealth or special wisdom, but by 
public opinion, that is to say, by the ideas and feelings of the 
people at large. In no country were swift political changes so 
much to be apprehended, because nowhere has material growth 
been so rapid and immigration so enormous. In none might 
the political character of the people have seemed more likely 
to be bold and prone to innovation, because their national 
existence began with a revolution, which even now lies only a 
century behind. That none has ripened into a more prudently 
conservative temper may be largely ascribed to the influence 
of the famous instrument of 1789, which, enacted by and for a 
new republic, summed up so much of what was best in the 
laws and customs of an ancient monarchy. 

1 An illustration of what I mean is afforded by the influence upon Roman 
legal history of the enactment at a comparatively early period of the Laws of 
the Twelve Tables, which, summing up the customary law of the community 
in a concise and impressive form, fostered a conservative temper in the nation, 
and caused legislative changes, when after some generations these became 
necessarily frequent, to be made in a cautious and tentative way. 



PART II 

THE STATE GOVERNMENTS 



CHAPTER XXXVI 

NATURE OF THE AMERICAN STATE 

From the study of the National Government, we may go on 
to examine that of the several States which made up the 
Union. This is the part of the American political system 
which has received least attention both from foreign and from 
native writers. Finding in the Federal president, cabinet, 
and Congress a government superficially resembling those of 
their own countries, and seeing the Federal authority alone 
active in international relations, Europeans have forgotten and 
practically ignored the State Governments to which their own 
experience supplies few parallels, and on whose workings the 
intelligence published on their side of the ocean seldom throws 
light. Even the European traveller who makes the six days' run 
across the American continent, from New York via Philadelphia 
and Chicago to San Francisco, though he passes in his journey 
of 3000 miles over the territories of eleven self-governing com- 
monwealths, hardly notices the fact. He uses one coinage 
and one post-office ; he is stopped by no custom-houses ; he 
sees no officials in a State livery ; he thinks no more of the 
difference of jurisdictions than the passenger from London to 
Liverpool does of the counties traversed by the line of the 
North- Western Railway. So, too, our best informed English 
writers on the science of politics, while discussing copiously 
the relation of the American States to the central authority, 
have failed to draw on the fund of instruction which lies in 
the study of the State Governments themselves. Mill in his 
Representative Government scarcely refers to them. Mr. Free- 
man in his learned essays, Sir H. Maine in his ingenious book 
on Popular Government, pass by phenomena which would have 
admirably illustrated some of their reasonings. 

American publicists, on the other hand, have been too much 
absorbed in the study of the Federal system to bestow much 



412 THE STATE GOVERNMENTS pari d 

thought on the State governments. The latter seem to them 
the most simple and obvious things in the world, while the 
former, which has been the battle-ground of their political 
parties for a century, excites the keenest interest, and is indeed 
regarded as a sort of mystery, on which all the resources of 
their metaphysical subtlety and legal knowledge may well be 
expended. Thus while the dogmas of State sovereignty and 
State rights, made practical by the great struggle over slavery, 
have been discussed with extraordinary zeal and acumen by 
three generations of men, the character, power, and working of 
the States as separate self-governing bodies have received 
little attention or illustration. Yet they are full of interest ; 
and he who would understand the changes that have passed 
on the American democracy will find far more instruction in 
a study of the State governments than of the Federal Consti- 
tution. The materials for this study are unfortunately, at 
least to a European, either inaccessible or unmanageable. 
They consist of constitutions, statutes, the records of the 
debates and proceedings of constitutional conventions and 
legislatures, the reports of officials and commissioners, to- 
gether with that continuous transcript and picture of current 
public opinion which the files of newspapers supply. Of 
these sources only one, the constitutions, is practically avail- 
able to a person writing on this side the Atlantic. To be 
able to use the rest one must go to the State and devote one's 
self there to these original authorities, correcting them, where 
possible, by the recollections of living men. It might have 
been expected that in most of the States, or at least of the 
older States, persons would have been found to write politi- 
cal, and not merely antiquarian or genealogical, State histo- 
ries, describing the political career of their respective commu- 
nities, and discussing the questions on which political contests 
have turned. But this has been done in comparatively few 
instances, so that the European inquirer finds a scanty meas- 
ure of the assistance which he would naturally have expected 
from previous labourers in this field. 1 I call it a field : it is 

1 Since these lines wort 1 written, such a scries of State histories has heen 
hegun under the title of American ComttWMBtaltks. Of the volumes that have 
already appeared some possess high merit; hut they do not always bring the 
narrative down to those very recent times which are most Instructive to the 
student of existing Institutions. 



chap, xxxvi NATURE OF THE STATE 413 

rather a primeval forest, where the vegetation is rank, and 
through which scarcely a trail has yet been cut. The new 
historical school which is groAving up at the leading American 
universities, and has already done excellent work on the 
earlier history of the Eastern States, will doubtless ulti- 
mately grapple with this task ; 1 in the meantime, the difficul- 
ties I have stated must be my excuse for treating this branch 
of my subject with a brevity out of proportion to its real in- 
terest and importance. It is better to endeavour to bring into 
relief a few leading features, little understood in Europe, 
than to attempt a detailed account which would run to inor- 
dinate length. 

The American State is a peculiar organism, unlike anything 
in modern Europe, or in the ancient world. The only parallel 
is to be found in the cantons of Switzerland, the Switzerland 
of our own day, for until 1815, if one ought not rather to say 
until 1848, Switzerland was not so much a nation or a state as 
a league of neighbour commonwealths. But Europe so per- 
sistently ignores the history of Switzerland, that most instruc- 
tive patent museum of politics, apparently only because she is 
a small country, and because people go there to see lakes and 
to climb mountains, that I should perplex instead of enlighten- 
ing the reader by attempting to illustrate American from Swiss 
phenomena. 

Let me attempt to sketch the American States as separate 
political entities, forgetting for the moment that they are also 
parts of a Federation. 

There are forty -four States in the American Union, varying 
in size from Texas, with an area of 265,780 square miles, to 
Rhode Island, with an area of 1250 square miles ; and in popu- 
lation from New York, with 5,997,853 inhabitants, to Nevada, 
with 45,761. That is to say, the largest State is much larger 
than either France or the Germanic Empire ; the most populous 
much more populous than Sweden, or Portugal, or Denmark, 
while the smallest is smaller than Warwickshire or Corsica, 
and the least populous less populous than the parish of Wands- 
worth in the suburbs of London (46,717), or the town of 

1 Since the above was written, in 1887, many valuable treatises and mono- 
graphs on these constitutional and historical topics have appeared, and several 
journals or serial publications have been established dealing with them. 



414 THE STATE GOVERNMENTS part ii 

Warrington in Lancashire (52,742). Considering not only 
these differences of size, but the differences in the density of 
population (which in Nevada is .4 and in Wyoming .G to the 
square mile, while in Rhode Island it is 27(3 and in Massa- 
chusetts 268 to the square mile) ; in its character (in South 
Carolina the blacks are 692,503 against 458.454 whites, in .Mis- 
sissippi 747,720 against 539,703 whites) ; in its birthplace (in 
North Carolina the foreign-born persons are less than -g-^ of 
the population, in California more than i) ; in the occupations 
of the people, in the amount of accumulated wealth, in the 
proportion of educated persons to the rest of the community, 
— it is plain that immense differences might be looked for 
between the aspects of politics and conduct of government in 
one State and in another. 

Be it also remembered that the older colonies had different 
historical origins. Virginia and North Carolina were unlike 
Massachusetts and Connecticut ; New York, Pennsylvania, and 
Maryland different from both ; while in recent times the stream 
of European immigration has filled some States with Irishmen, 
others with Germans, others with Scandinavians, and has left 
most of the Southern States wholly untouched. 

Nevertheless, the form of government is in its main outlines. 

and to a large extent even in its actual working, the same in all 

these forty-four republics, and the differences, instructive as 

they are, relate to points of secondary consequence. 

The States fall naturally into five groups : — 

The New England States — Massachusetts, Connecticut. 

Rhode Island, New Hampshire, Vermont, Maine. 
The Middle States — New York. New Jersey, Pennsylvania, 

Delaware, 1 Maryland, Ohio, Indiana." 
The Southern, or old Slave States — Virginia, West Vir- 
ginia (separated from Virginia dnring the war). North 
Carolina, South Carolina, Georgia, Alabama. Florida. 
Kentucky, Tennessee, Mississippi, Louisiana, Arkansas. 
Missouri. Texas. 

1 Delaware and Maryland were Slave States, bul did not secede, ami are in 

BOme respects to he classed rather with the Middle than with the Southern 

^group, as indeed are \v. Virginia and Missouri, perhaps even Tennessee and 
Kentucky. 

8 Ohio and Indiana are becoming rather Middle than Western, hut many 
people would still class them anion- Western States. 



chap, xxxvi NATURE OF THE STATE 415 

. . 

The North- Western States — Michigan, Illinois, Wisconsin, 
Minnesota, Iowa, Nebraska, Kansas, Colorado, N. Da- 
kota, S. Dakota, Wyoming, Montana, Idaho. 

The Pacific States — California, Nevada, Oregon, Washing- 
ton. 

Each of these groups has something distinctive in the char- 
acter of its inhabitants, which is reflected, though more faintly 
now than formerly, in the character of its government and 
politics. 

New England is the old home of Puritanism, the traces 
whereof, though waning under the influence of Irish and 
French Canadian immigration, are by no means yet extinct. 
The Southern States will long retain the imprint of slavery, not 
merely in the presence of a host of negroes, but in the degra- 
dation of the poor white population, and in certain attributes, 
laudable as well as regrettable, of the ruling class. The 
North-West is the land of hopefulness, and consequently of 
bold experiments in legislation : its rural inhabitants have the 
honesty and narrow-mindedness of agriculturists. The Pacific 
West, or rather California and Nevada, for Oregon and Wash- 
ington belong in character to the Upper Mississippi or North- 
western group, tinges the energy and sanguine good nature of 
the Westerns with a speculative recklessness natural to mining 
communities, where great fortunes have rapidly grown and van- 
ished, and into which elements have been suddenly swept to- 
gether from every part of the world, as a Eocky Mountain 
rainstorm fills the bottom of a valley with sand and pebbles 
from all the surrounding heights. 

As the dissimilarity of population and of external conditions 
seems to make for a diversity of constitutional and political 
arrangements between the States, so also does the large 
measure of legal independence which each of them enjoys 
under the Federal Constitution. No State can, as a common- 
wealth, politically deal with or act upon any other State. No 
diplomatic relations can exist nor treaties be made between 
States, no coercion can be exercised by one upon another. 
And although the government of the Union can act on a State, 
it rarely does act, and then only in certain strictly limited 
directions, which do not touch the inner political life of the 
commonwealth. 



416 THE STATE GOVERNMENTS part ii 

Let us pass on to consider the circumstances which work for 
uniformity among the States, and work more powerfully as 
time goes on. 

He who looks at a map of the Union will be struck by the 
fact that so many of the boundary lines of the States are 
straight lines. Those lines tell the same tale as the geometri- 
cal plans of cities like St. Petersburg or Washington, where 
every street runs at the same angle to every other. The 
States are not natural growths. Their boundaries are for the 
most part not natural boundaries fixed by mountain ranges, 
nor even historical boundaries due to a series of events, but 
purely artificial boundaries, determined by an authority which 
carved the national territory into strips of convenient size, as 
a building company lays out its suburban lots. Of the States 
subsequent to the original thirteen, California is the only one 
with a genuine natural boundary, finding it in the chain of the 
Sierra Nevada on the east and the Pacific ocean on the west. 
No one of these later States can be regarded as a naturally de- 
veloped political organism. They are trees planted by the 
forester, not self-sown with the help of the seed-scattering 
wind. This absence of physical lines of demarcation has 
tended and must tend to prevent the growth of local distinc- 
tions. Nature herself seems to have designed the Mississippi 
basin, as she has designed the unbroken levels of Russia, to be 
the dwelling-place of one people. 

Each State makes its own Constitution ; that is, the people 
agree on their form of government for themselves, with no in- 
terference from the other States or from the Union. This form 
is subject to one condition only : it must be republican. 1 But 
in each State the people who make the constitution have lately 
come from other States, where they have lived under and 
worked constitutions which are to their eyes the natural and 
almost necessary model for their new State xo follow; and in 
the absence of an inventive spirit among the citizens, it was 
the obvious course for the newer States to copy the organi- 
zations of the older States, especially as these agreed with cer- 

1 The case of Kansas immediately before tlu> War of Secession, and the cases 
of the rebel States, which were not readmitted after the war till they had 

accepted the constitutional amendments forbidding slavery and protecting the 

freedmen are quite exceptional. 



chap, xxxvi NATURE OF THE STATE 417 

tain familiar features of the Federal Constitution. Hence the 
outlines, and even the phrases of the elder constitutions reap- 
pear in those of the more recently formed States. The prece- 
dents set by Virginia, for instance, had much influence on 
Tennessee, Alabama, Mississippi, and Florida, when they were 
engaged in making or amending their constitutions during the 
early part of this century. 

Nowhere is population in such constant movement as in 
America. In some of the newer States only one-fourth or one- 
fifth of the inhabitants are natives of the United States. 
Many of the townsfolk, not a few even of the farmers, have 
been till lately citizens of some other State, and will, perhaps, 
soon move on farther west. These Western States are like a 
chain of lakes through which there flows a stream which min- 
gles the waters of the higher with those of the lower. In such 
a constant flux of population local peculiarities are not readily 
developed, or if they have grown up when the district was still 
isolated, they disappear as the country becomes filled. Each 
State takes from its neighbours and gives to its neighbours, so 
that the process of assimilation is always going on over the 
whole wide area. 

Still more important is the influence of railway communica- 
tion, of newspapers, of the telegraph. A Greek city like 
Samos or Mitylene, holding her own island, preserved a dis- 
tinctive character in spite of commercial intercourse and the 
sway of Athens. A Swiss canton like Uri or Appenzell, en- 
trenched behind its mountain ramparts, remains, even now 
under the strengthened central government of the Swiss na- 
tion, unlike its neighbours of the lower country. But an 
American State traversed by great trunk lines of railway, and 
depending on the markets of the Atlantic cities and of Europe 
for the sale of its grain, cattle, bacon, and minerals, is attached 
by a hundred always tightening ties to other States, and 
touched by their weal or woe as nearly as by what befalls 
within its own limits. The leading newspapers are read over 
a vast area. The inhabitants of each State know every morn- 
ing the events of yesterday over the whole Union. 

Finally the political parties are the same in all the States. 
The tenets (if any) of each party are (with some slight excep- 
tions) the same everywhere, their methods the same, their 

VOL. I 2 E 



418 THE STATE GOVERNMENTS part ii 

leaders the same, although of course a prominent man enjoys 
especial influence in his own State. Hence, State politics are 
largely swayed by forces and motives external to the particu- 
lar State, and common to the whole country, or two great sec- 
tions of it ; and the growth of local parties, the emergence 
of local issues and development of local political schemes, are 
correspondingly restrained. 

These considerations explain why the States, notwithstand- 
ing the original diversities between some of them, and the 
wide scope for political divergence which they all enjoy under 
the Federal Constitution, are so much less dissimilar and less 
peculiar than might have been expected. European statesmen 
have of late years been accustomed to think of federalism and 
local autonomy as convenient methods either for recognizing 
and giving free scope to the sentiment of nationality which 
may exist in any part of an empire, or for meeting the need 
for local institutions and distinct legislation which may arise 
from differences between such a part and the rest of the em- 
pire. It is one or other or both of these reasons that have 
moved statesmen in such cases as those of Finland in her rela- 
tions to Russia, Hungary in her relations to German Austria, 
Iceland in her relations to Denmark, Bulgaria in her relations 
to the Turkish Sultan, Ireland in her relations to Great Britain. 
But the final causes, so to speak, of the recognition of the 
States of the American Union as autonomous commonwealths, 
have been different. Their self-government is not the conse- 
quence of differences which can be made harmless to the whole 
body politic only by being allowed free course. It has been 
due primarily to the historical fact that they existed as com- 
monwealths before the Union came into being; secondarily, to 
the belief that localized government is the best guarantee for 
civic freedom, and to a sense of the difficulty of administering 
a vast territory and population from one centre and by one 
government. 

I return to indicate tin 1 points in which the legal indepen- 
dence and right of self-government of the several States ap- 
pears. Each of the forty-four has its own — 

Constitution (whereof more anon). 

Executive, consisting of a governor, and various other of- 
ficials. 



chap, xxxvi NATURE OF THE STATE 419 

Legislature of two Houses. 

System of local government in counties, cities, townships, 
and school districts. 

System of State and local taxation. 

Debts, which it may repudiate at its own pleasure. 

Body of private law, including the whole law of real and 
personal property, of contracts, of torts, and of family 
relations. 

System of procedure, civil and criminal. 

Court, from which no appeal lies (except in cases touching 
Federal legislation or the Federal constitution) to any 
Federal court. 

Citizenship, which may admit persons {e.g. recent immi- 
grants) to be citizens at times, or on conditions, wholly 
different from those prescribed by other States. 

Three points deserve to be noted as illustrating what these 
attributes include. 

I. A man gains active citizenship of the United States {i.e. 
a share in the government of the Union) only by becoming 
a citizen of some particular State. Being such citizen, he is 
forthwith entitled to the national franchise. That is to say, 
voting power in the State carries voting power in Federal 
elections, and however lax a State may be in its grant of such 
power, e.g. to foreigners just landed or to persons convicted 
of crime, these State voters will have the right of voting in 
congressional and presidential elections. 1 The only restriction 
on the States in this matter is that of the fourteenth and 
fifteenth Constitutional amendments, which have already been 
discussed. They were intended to secure equal treatment to 
the negroes, and incidentally they declare the protection given 

1 Congress has power to pass a uniform rule of naturalization (Const. Art. 
i.§8). 

Under the present naturalization laws a foreigner must have resided in the 
United States for five years, and for one year in the State or Territory where 
he seeks admission to United States citizenship, and must declare two years 
before he is admitted that he renounces allegiance to any foreign prince or 
state. Naturalization makes him a citizen not only of the United States but of 
the State or Territory where he is admitted, but does not necessarily confer the 
electoral franchise, for that depends on State laws. 

In more than a third of the States the electoral franchise is now enjoyed by 
persons not naturalized as United States citizens. 



420 THE STATE GOVERNMENTS part ii 

to all citizens of the United States. 1 Whether they really en- 
large it, that is to say, whether it did not exist by implication 
before, is a legal question, which I need not discuss. 

II. The power of a State over all communities within its 
limits is absolute. It may grant or refuse local government as 
it pleases. The population of the chVy of Providence is more 
than one-third of that of the State of Rhode Island, the popu- 
lation of New York City one-fourth that of the State of New 
York. But the State might in either case extinguish the 
municipality, and govern the city by a single State commis- 
sioner appointed for the purpose, or leave it without any 
government whatever. The city would have no right of 
complaint to the Federal President or Congress against su< h a 
measure. Massachusetts lately remodelled the city government 
of Boston just as the British Parliament might remodel that 
of Birmingham. Let an Englishman imagine a county council 
for Warwickshire suppressing the municipality of Birmingham, 
or a Frenchman imagine the department of the Rhone extin- 
guishing the municipality of Lyons, with no possibility of 

1 " The line of distinction between the privileges and immunities of citizens 
of the United States, and those of citizens of the several States, must be traced 
along the boundary of their respective spheres of action, and the two classes 
must be as different in their nature as are the functions of their respective gov- 
ernments. A citizen of the United States as such has a right to participate in 
foreign and inter-state commerce, to have the benefit of the postal laws, to make 
use in common with others of the navigable waters of the United States, and to 
pass from State to State, and into foreign countries, because over all these sub- 
jects the jurisdiction of the United States extends, and they are covered by its 
laws. The privileges suggest the immunities. Wherever it is the duty oi" the 
United States to give protection to a citizen against any harm, inconvenience, 
or deprivation, the citizen is entitled to an immunity which pertains to Federal 
citizenship. One very plain immunity is exemption from any tax. burden, or 
imposition under State laws as a condition to the enjoyment of any right or 
privilege under the laws of the United States. . . . Whatever one may claim as 
of right under the Constitution and laws of the United States by virtue of his 
citizenship, is a privilege of a citizen of the United States. Whatever the 
Constitution and laws of the United Stales entitle him to exemption from, he 
may claim an exemption in respect to. Ami such a right or privilege is 
abridged whenever the state law interferes with any legitimate operation of 

Federal authority which concerns his interest, whether it be an authority 
actively exerted, or resting only in the express or implied command or assur- 
ance of the Federal Constitution or law. But the United States can neither 

granl nor secure to its citizens rights, or privileges which are not expressly or 
by reasonable implication placed under its jurisdiction, and all not so placed 
are hit to the exclusive protection i^i the states." — Coolev. P r i nciple*, pp. 
245-247. 



chap, xxxvi NATURE OF THE STATE 421 

intervention by the central authority, and he will measure the 
difference between the American States and the local govern- 
ments of Western Europe. 

III. A State commands the allegiance of its citizens, and 
may punish them for treason against it. The power has 
rarely been exercised, but its undoubted legal existence had 
much to do with inducing the citizens of the Southern States 
to follow their governments into secession in 1861. They 
conceived themselves to owe allegiance to the State as well as 
to the Union, and when it became impossible to preserve both, 
because the State had declared its secession from the Union, 
they might hold the earlier and nearer authority to be para- 
mount. Allegiance to the State must now, since the war, be 
taken to be subordinate to allegiance to the Union. But 
allegiance to the State still exists ; treason against the State 
is still possible. One cannot think of treason against Warwick- 
shire or the department of the Rhone. 

These are illustrations of the doctrine which Europeans 
often fail to grasp, that the American States were originally in 
a certain sense, and still for certain purposes remain, sovereign 
States. Each of the original thirteen became sovereign (so far 
as its domestic affairs were concerned, though not as respects 
international relations) when it revolted from the mother 
country in 1776. By entering the Confederation of 1781-88 it 
parted with one or two of the attributes of sovereignty, by 
accepting the Eederal Constitution in 1788-91 it subjected 
itself for certain specified purposes to a central government, 
but claimed to retain its sovereignty for all other purposes. 
That is to say, the authority of a State is an inherent, not a 
delegated, authority. It has all the powers which any inde- 
pendent government can have, except such as it can be affirma- 
tively shown to have stripped itself of, while the Federal 
Government has only such powers as it can be affirmatively 
shown to have received. To use the legal expression, the 
presumption is always for a State, and the burden of proof 
lies upon any one who denies its authority in a particular 
matter. 1 

1 As the colonies had associated themselves into a league, at the very time at 
which they revolted from the British Crown, and as their foreign relations 
were always managed by the authority and organs of this league, no one of 



422 THE STATE GOVERNMENTS part ii 

What State sovereignty means and includes was a question 
which incessantly engaged the most active legal and political 
minds of the nation, from 1789 down to 1870. Some thought 
it paramount to the rights of the Union. Some considered it 
as held in suspense by the Constitution, but capable of reviving 
as soon as a State should desire to separate from the Union. 
Some maintained that each State had in accepting the Con- 
stitution finally renounced its sovereignty, which thereafter 
existed only in the sense of such an undefined domestic legis- 
lative and administrative authority as had not been conferred 
upon Congress. The conflict of these views, which became 
acute in 1830 when South Carolina claimed the right of nulli- 
fication, produced Secession and the war of 1861-65. Since 
the defeat of the Secessionists, the last of these views may 
be deemed to have been established, and the term " State sov- 
ereignty " is now but seldom heard. Even " States' rights " 
have a different meaning from that which they had thirty 
years ago. 1 

A European who now looks calmly back on this tremendous 
controversy of tongue, pen, and sword, will be apt to express 
his ideas of it in the following way. He will remark that 
much of the obscurity and perplexity arose from confounding 
the sovereignty of the American nation with the sovereignty 
of the Federal Government. The Federal Government clearly 
was sovereign only for certain purposes, i.e. only in so far as 
it had received specified powers from the Constitution. These 
powers did not, and in strict legal construction do not now, 
abrogate the supremacy of the States in their proper sphere. 
A State still possesses one important attribute of sovereignty 
— immunity from being sued except by another State. But 

them ever was for international purposes a free and independent sovereign 
State. Abraham Lincoln was in this Bense justified in saying that the Union was 
older than the States, and had created them as Stales. Bui what arc we to say 
of North Carolina and Rhode Island, after the acceptance of the Constitution of 
17S7-S'.) by the other eleven States? They were out i^( the old Confederation, 

for it had expired. They were not in the new Union, for they refused during 

many months to enter it. What else can they have been daring those months 
except sovereign commonwealths? 

1 States rights was a watchword in the South for many years. In 1861 there 
was a student at Harvard College from South Carolina who bore the name of 

States Rights Gist, baptized, so to speak, into Calhounism. lie rose to be a 
brigadier-general in the Confederate army, and fell in the Civil War. 



chap, xxxvi NATURE OF THE STATE 423 

the American nation which had made the Constitution, had 
done so in respect of its own sovereignty, and might well be 
deemed to retain that sovereignty as paramount to any rights 
of the States. The feeling of this ultimate supremacy of the 
nation was what swayed the minds of those who resisted 
Secession, just as the equally well-grounded persuasion of the 
limited character of the central Federal Government satisfied 
the conscience of the seceding South. 

The Constitution of 1789 was a compromise, and a compro- 
mise arrived at by allowing contradictory propositions to be 
represented as both true. It has been compared to the declara- 
tions made with so much energy and precision of language in 
the ancient hymn Quicunque Vult, where, however, the appar- 
ent contradiction has always been held to seem a contradiction 
only because the human intellect is unequal to the comprehen- 
sion of such profound mysteries. To every one who urged 
that there were thirteen States, and therefore thirteen govern- 
ments, it was answered, and truly, that there was one gov- 
ernment, because the people were one. To every one who 
declared that there was one government, it was answered with 
no less truth that there were thirteen. Thus counsel was 
darkened by words without knowledge ; the question went off 
into metaphysics, and found no end, in wandering mazes lost. 

There was, in fact, a divergence between the technical and 
the practical aspects of the question. Technically, the seced- 
ing States had an arguable case ; and if the point had been one 
to be decided on the construction of the Constitution as a 
court decides on the construction of a commercial contract, 
they were possibly entitled to judgment. Practically, the de- 
fenders of the Union stood on firmer ground, because circum- 
stances had changed since 1789 so as to make the nation more 
completely one nation than it then was, and had so involved 
the fortunes of the majority which held to the Union with 
those of the minority seeking to depart that the majority 
might feel justified in forbidding their departure. Stripped 
of legal technicalities, the dispute resolved itself into the 
problem often proposed but capable of no general solution : 
When is a majority entitled to use force for the sake of retain- 
ing a minority in the same political body with itself? To 
this question, when it appears in a concrete shape, as to the 



424 THE STATE GOVERNMENTS part ii 

similar question when an insurrection is justifiable, an answer 
can seldom be given beforehand. The result decides. When 
treason prospers, none dare call it treason. 

The Constitution, which had rendered many services to the 
American people, did them an inevitable dis-service when it 
fixed their minds on the legal aspects of the question. Law 
was meant to be the servant of politics, and must not be suf- 
fered to become the master. A case had arisen which its for- 
mulae were unfit to deal with, a case which had to be settled on 
large moral and historical grounds. It was not merely the 
superior physical force of the North that prevailed ; it was the 
moral forces which rule the world, forces which had long 
worked against slavery, and were ordained to save North 
America from the curse of hostile nations established side by 
side. 

The word " sovereignty," which has in many ways clouded 
the domain of public law and jurisprudence, confused men's 
minds by making them assume that there must in every coun- 
try exist, and be discoverable by legal inquiry, either one body 
invested legally with supreme power over all minor bodies, or 
several bodies which, though they had consented to form part 
of a larger body, were each in the last resort independent of it, 
and responsible to none but themselves. 1 They forgot that a 
Constitution may not have determined where legal supremacy 
shall dwell. Where the Constitution of the United States 
placed it was at any rate doubtful, so doubtful that it Mould 
have been better to drop technicalities, and recognize the broad 
fact that the legal claims of the States had become incompati- 
ble with the historical as well as legal claims of the nation. 
In the uncertainly as to where legal right resided, it would 
have been prudent to consider where physical force resided. 
The South however thought herself able to resist any physical 

1 A further confusion arises from the foci that men are apt in talking of 
sovereignty to mix up (as the Benthamite Bchool have unfortunately done) 
legal supremacy with practical predominance. They ought to go together, and 
law seeks to make them go together. Bui it may happen that the person or 
body in whom law rests supreme authority is unable to enforce that authority: 
so the legal sovereign ami the actual sovereign — that is to say. the force which 

will prevail in physical contlicl arc different. There is always a strongest 
force; hut the force recognized by law may not he really the Strongest : ami of 
several forces it may be impossible to tell, lill they have come into actual phys- 
ical conflict, which i> the strongest. 



chap, xxxvi NATURE OF THE STATE 425 

force which, the rest of the nation might bring against her. 
Thus encouraged, she took her stand on the doctrine of States' 
Eights : and then followed a pouring out of blood and treasure 
such as was never spent on determining a point of law before, 
not even when Edward III. and his successors waged war for 
a hundred years to establish the claim of females to inherit 
the crown of France. 

What, then, do the rights of a State now include ? Every 
right or power of a Government except : — 

The right of secession (not abrogated in terms, but admitted 
since the war to be no longer claimable. It is expressly 
negatived in the recent Constitutions of several South- 
ern States). 

Powers which the Constitution withholds from the States 
(including that of intercourse with foreign govern- 
ments). 

Powers which the Constitution expressly confers on the 
Federal Government. 

As respects some powers of the last class, however, the 
States may act concurrently with, or in default of action by, 
the Federal Government. It is only from contravention of its 
action that they must abstain. And where contravention is 
alleged to exist, whether legislative or executive, it is by a 
court of law, and, in case the decision is in the first instance 
favourable to the pretensions of the State, ultimately by a 
Federal court, that the question falls to be decided. 1 

A reference to the preceding list of what each State may 
create in the way of distinct institutions will show that these 
rights practically cover nearly all the ordinary relations of 
citizens to one another and to their Government, nearly all the 
questions which have been most agitated in England and 
France of recent years. An American may, through a long 
life, never be reminded of the Federal Government, except 
when he votes at presidential and congressional elections, 
buys a package of tobacco bearing the government stamp, 
lodges a complaint against the post-office, and opens his trunks 
for a custom-house officer on the pier at New York when he 
returns from a tour in Europe. His direct taxes are paid to 
officials acting under State laws. The State, or a local author- 
1 See Chapter XXII. ante. 



426 THE STATE GOVERNMENTS part ii 



ity constituted by State statutes, registers his birth, appoints 
his guardian, pays for his schooling, gives hirn a share in the 
estate of his father deceased, licenses him when he enters a 
trade (if it be one needing a licence), marries him, divorces 
him, entertains civil actions against him, declares him a bank- 
rupt, hangs him for murder. The police that guard his house, 
the local boards which look a£tev the poor, control highways, 
impose water rates, manage "schools — all these derive their 
legal powers from his State alone. Looking at this immense 
compass of State functions, Jefferson would seem to have been 
not far wrong when he said that the Federal government was 
nothing more than the American department of foreign affairs. 
But although the National government touches the direct 
interests of the citizen less than does the State government, it 
touches his sentiment more. Hence the strength of his attach- 
ment to the former and his interest in it must not be measured 
by the frequency of his dealings with it. In the partition- 
ment of governmental functions between nation and State, the 
State gets the most but the nation the highest, so the balance 
between the two is preserved. 

Thus every American citizen lives in a duality of which 
Europeans, always excepting the Swiss, and to some extent the 
Germans, have no experience. He lives under two govern- 
ments and two sets of laws ; he is animated by two patriotisms 
and owes two allegiances. That these should both be strong and 
rarely be in conflict is most fortunate. It is the result of skil- 
ful adjustment and long habit, of the fact that those whose 
votes control the two sets of governments are the same per- 
sons, but above all of that harmony of each set of institutions 
with the other set, a harmony due to the identity of the prin- 
ciples whereon both are founded, which makes each appear 
necessary to the stability of the other, the States to the nation 
as its basis, the National Government to the States as their 
protector. 



CHAPTER XXXVII 

STATE CONSTITUTIONS 

The government of each of the forty-four States is deter- 
mined by and set forth in its Constitution, a comprehensive 
fundamental law, or rather group of laws included in one in- 
strument, which has been directly enacted by the people of the 
State, and is capable of being repealed or altered, not by their 
representatives, but by themselves alone. As the Constitution 
of the United States stands above Congress and out of its 
reach, so the Constitution of each State stands above the legis- 
lature of that State, cannot be varied in any particular by the 
State legislature, and involves the invalidity of any statute 
passed by that legislature which is found to be inconsistent 
with it. 

The State Constitutions are the oldest things in the politi- 
cal history of America, for they are the continuations and rep- 
resentatives of the royal colonial charters, whereby the earliest 
English settlements in America were created, and under which 
their several local governments were established, subject to 
the authority of the English Crown and ultimately of the 
British Parliament. But, like most of the institutions under 
which English-speaking peoples now live, they have a pedigree 
which goes back to a time anterior to the discovery of America 
itself. It begins with the English Trade Guild of the middle 
ages, itself the child of still more ancient corporations, dating 
back to the days of imperial Rome, and formed under her im- 
perishable law. Charters were granted to merchant guilds in 
England as far back as the days of King Henry I. Edward 
IV. gave an elaborate one to the Merchant Adventurers trading 
with Flanders in 1463. In it we may already discern the ar- 
rangements which are more fully set forth in two later charters 
of greater historical interest, the charter of Queen Elizabeth 

427 



428 THE STATE GOVERNMENTS part ii 

to the East India Company in 1599, and the charter of Charles 
I. to the " Governor and Company of the Massachusetts Bay 
in N ewe-England " in 1628. Both these instruments establish 
and incorporate trading companies, with power to implead and 
be impleaded, to use a common seal, to possess and acquire 
lands tenements and hereditaments, with provisions for the 
making of ordinances for the welfare of the company. The 
Massachusetts Charter creates a frame of government consist- 
ing of a governor, deputy-governor, and eighteen assistants 
(the term still in use in many of the London city guilds), and 
directs them to hold four times a year a general meeting of the 
company, to be called the "greate and generall Court," in 
which general court " the Governor or deputie Governor, and 
such of the assistants and Freemen of the Company as shall 
be present, shall have full power and authority to choose other 
persons to be free of the Company, and to elect and constitute 
such officers as they shall thinke fitt for managing the affaires 
of the saide Governor and Company, and to make Lawes and 
Ordinances for the Good and Welfare of the saide Company, 
and for the Government and Ordering of the saide Landes and 
Plantasion, and the People inhabiting and to inhabite the same, 
soe as such Lawes and Ordinances be not contrary or repug- 
nant to the Lawes and Statuts of this our realine of England." 
In 1691, the charter of 1628 having been declared forfeited in 
1684, a new one was granted by King William and Queen 
Mary, and this instrument, while it retains much of the lan- 
guage and some of the character of the trade guild charter, is 
really a political frame of government for a colony. The as- 
sistants receive the additional title of councillors ; their number 
is raised to twenty-eight ; they are to be chosen by the general 
court, and the general court itself is to consist, together with 
the governor and assistants, of freeholders elected by towns 
or places within the colony, the electors being persons with a 
forty shilling freehold or other property worth £40. The 
governor is directed to appoint judges, commissioners of oyer 
and terminer, etc. ; the general court receives power to estab- 
lish judicatories and courts of record, to pass laws (being not 
repugnant to the laws of England), and to provide for all neces- 
sary civil offices. An appeal Prom the courts shall always be 
to the King in his privy council. This is a true political 



chap, xxxvn STATE CONSTITUTIONS 429 

Constitution. 1 Under it the colony was governed, and in the 
main well and wisely governed, till 1780. Much of it, not 
merely its terms, such as the name General Court, but its solid 
framework, was transferred bodily to the Massachusetts Con- 
stitution of 1780, which is now in force, and which profoundly 
influenced the Convention that prepared the Federal Constitu- 
tion in 1787. Yet the charter of 1691 is nothing but an exten- 
sion and development of the trading charter of 1628, in which 
there already appears, as there had appeared in Edward IV.'s 
charter of 1463, and in the East India Company's charter of 
1599, the provision that the power of law-giving, otherwise un- 
limited, should be restricted by the terms of the charter itself, 
which required that every law for the colony should be agreea- 
ble to the laws of England. We have therefore in the three 
charters which I have named, those of 1463, 1599, and 1628, as 
well as in that of 1691, the essential and capital characteristic 
of a Kigid or supreme Constitution — viz. a frame of govern- 
ment established by a superior authority, creating a subordi- 
nate law-making body, which can do everything except violate 
the terms and transcend the powers of the instrument to which 
it owes its own existence. So long as the colony remained 
under the British Crown, the superior authority, which could 
amend or remake the frame of government, was the British 
Crown or Parliament. When the connection with Britain was 
severed, that authority passed over, not to the State legis- 
lature, which remained limited, as it always had been, but to 
the people of the now independent commonwealth, whose will 
speaks through what is now the State Constitution, just as the 
will of the Crown or of Parliament had spoken through the 
charters of 1628 and 1691. 



1 The oldest truly political Constitution in America is the instrument called 
the Fundamental Orders of Connecticut, framed by the inhabitants of Windsor, 
Hartford, and Wethersfield in 1638, memorable year, when the ecclesiastical 
revolt of Scotland saved the liberties of England. Connecticut was afterwards 
regularized by Charles II.'s charter of 1662 to " the Governor and Company of 
the English colony of Connecticut." The agreement drawn up in the cabin of 
the Mayflower may perhaps claim to have in it the germs of a government. 

I am here tracing only the formal and legal growth of State Constitutions. 
Their democratic spirit and contents are largely due to the ideas with which 
the theology of the Reformers, and especially of Calvin, had filled the minds 
of the Puritan emigrants ; and the ecclesiastical arrangements they had set up 
powerfully influenced those of the nascent political communities. 



430 THE STATE GOVERNMENTS part ii 

I have taken the case of Massachusetts as the best example 
of the way in which the trading Company grows into a colony, 
and the colony into a State. But some of the other colonies 
furnish illustrations scarcely less apposite. The oldest of 
them all, the acorn whence the oak of English dominion in 
America has sprung, the colony of Virginia, was, by the second 
charter, of 1609, established under the title of " The Treasurer 
and Company of Adventurers and Planters of the City of Lon- 
don for the first colony in Virginia." 1 

Within the period of ten years, under the last of the Tudors 
and the first of the Stuarts, two trading charters were issued to 
two Companies of English adventurers. One of these charters 
is the root of English title to the East and the other to the West. 
One of these Companies has grown into the Empire of India ; 
the other into the United States of North America. If England 
had done nothing else in history, she might trust for her fame 
to the work which these charters began. And the foundations 
of both dominions were laid in the age which was adorned by 
the greatest of all her creative minds, and gave birth to the men 
who set on a solid basis a frame of representative government 
which all the free nations of the modern world have copied. 

When, in 1776, the thirteen colonies threw off their allegiance 
to King George III., and declared themselves independent 
States, the colonial charter naturally became the State Consti- 
tution. 2 In most cases it was remodelled, with large altera- 
tions, by the revolting colony. But in three States it was 
maintained unchanged, except, of course, so far as Crown 

1 The phrase First colony distinguishes what afterwards became the State of 
Virginia from the more northerly parts of Virginia, afterwards called New 
England. The Second colony was to be Plymouth, one of the two settlements 
which became Massachusetts. 

2 Even in declaring herself independent, New Jersey clung to the hope that 
the mother country would return to wiser counsels, and avert the departure of 
her children. She added at the end of her Constitution of I'd July 177ti the 
following proviso: "Provided always, and ii is the true intent and meaning 
of this Congress, that if a reconciliation between Great Britain and these 
colonies should take place, and the latter be taken again under the protection 
and government of the Crown of Britain, this charter shall be null and void, 
otherwise remain firm and inviolable." The truth is that the colonists, till 
alienated by the behaviour of England, had more kindly feelings towards 
her than she had towards them. 'To them she was the old home, to her they 
were simply customers. Some interesting illustrations of the views then 
entertained as to the use of colonies may be found in the famous discussion in 
tlu> fourth book of Adam Smith's Wealth Of Nations, which appeared in 177U. 



chap, xxxvn STATE CONSTITUTIONS 431 

authority was concerned, viz. in Massachusetts till 1780, in 
Connecticut till 1818, and in Ehode Island till 1842. 1 The 
other thirty-one States admitted to the Union in addition to 
the original thirteen, have all entered it as organized self- 
governing communities, with their Constitutions already made 
by their respective peoples. Each Act of Congress which 
admits a new State admits it as a subsisting commonwealth, 
sometimes empowering its people to meet and enact a consti- 
tution for themselves (subject to conditions mentioned in the 
act) sometimes accepting and confirming a constitution so 
already made by the people. 2 Congress may impose conditions 
which the State Constitution must fulfil ; and in admitting the 
six newest States has affected to retain the power of maintain- 
ing these conditions in force. But the authority of the State 
Constitutions does not flow from Congress, but from accept- 
ance by the citizens of the States for which they are made. Of 
these instruments, therefore, no less than of the Constitutions 
of the thirteen original States, we may say that although sub- 
sequent in date to the Federal Constitution, they are, so far 
as each State is concerned, de jure prior to it. Their authority 
over their own citizens is nowise derived from it. 3 Nor is this 

1 Rhode Island simply passed a statute by her legislature in May 1776, sub- 
stituting allegiance to the colony for allegiance to the King. Connecticut 
passed the following statute: — " Be it enacted by the Governor and Council 
and House of Representatives, in general court assembled, that the ancient 
form of civil government contained in the charter from Charles II., King of 
England, and adopted by the people of this State, shall be and remain the 
civil Constitution of this State, under the sole authority of the people thereof, 
independent of any king or prince whatever ; and that this republic is, and 
shall for ever be and remain, a free, sovereign, and independent State, by the 
name of the State of Connecticut." (Three paragraphs follow containing a 
short "Bill of Rights," and securing to the inhabitants of any other of the 
United States the same law and justice as natives of the State enjoyed.) This 
is all that Connecticut thought necessary. She had possessed, as did Rhode 
Island also, the right of appointing her own governor, and therefore did not 
need to substitute any new authority for a royal governor. 

2 In the Act of 1889 for the admission of North Dakota, South Dakota, Mon- 
tana, and Washington, the former course, in the admission of Idaho and 
Wyoming in 1890, the latter course was followed. 

3 In practice Congress can influence the character of a State Constitution, 
because a State whose Constitution contains provisions which Congress disap- 
proves may be refused admission. But since the extinction of slavery and 
completion of the process of reconstruction, occasions for the serious exercise 
of such a power rarely arise. It was used to compel the seceding States to 
modify their Constitutions so as to get rid of all taint of slavery before their 
senators and representatives were readmitted to Congress after the war. Of 



432 THE STATE GOVERNMENTS past 11 

a mere piece of technical law. The antiquity of the older 
States as separate commonwealths, running back into the heroic 
ages of the first colonization of America and the days of the 
Kevolutionary War, is a potent source of the local patriotism 
of their inhabitants, and gives these States a sense of historic 
growth and indwelling corporate life which they could not 
have possessed had they been the mere creatures of the Fed- 
eral Government. 

The State Constitutions of America well deserve to be com- 
pared with those of the self-governing British colonies. But 
one remarkable difference must be noted here. The constitu- 
tions of British colonies have all proceeded from the Imperial 
Parliament of the United Kingdom, which retains its full legal 
power of legislating for every part of the British dominions. 
In many cases a colonial constitution provides that it may be 
itself altered by the colonial legislature, of course with the 
assent of the Crown ; but inasmuch as in its origin it is a stat- 
utory constitution, not self-grown, but planted as a shoot by 
the Imperial Parliament at home, Parliament may always alter 
or abolish it. Congress, on the other hand, has no power to 
alter a State Constitution. And whatever power of alteration 
has been granted to a British colony is exercisable by the colo- 
nial legislature, not, as in America, by the citizens at large. 

The original Constitutions of the States, whether of the old 
thirteen or of the newer thirty-one, have been in nearly every 
case (except those of the eight newest States) subsequently 
recast, in some instances five, six, or even seven times, as well 
as amended in particular points. Thus Constitutions of all 
dates are now in force in different States, from that of Massa- 
chusetts, enacted in 1780, but largely amended since, to that 
of Kentucky, enacted in 1891. 

The Constitutions of the revolutionary period were in a few 
instances enacted by the State legislature, acting as a body 

course Congress is not bound to admit a community desiring to be recognized 
as a State. Utah has been kept knocking at the door of the Union for many 
years, because the majority of 1km- inhabitants have lain under suspicion, and 
the nation wishes to retain for the purpose of preventing polygamy that full 
control which can he exercised over a Territory but not over a State. Sometimes 

a dominant party postpones the admission of a State likely to strengthen by 

its vote the opposite party; and sometime s. as happened in the recent e; 
Wyoming, Montana, and Idaho, communities whose fitness for Statehood might 
well be doubted have been admitted for partisan reasons. 



chap, xxxvu STATE CONSTITUTIONS 433 

with plenary powers, but more usually by the people acting 
through a Convention, i.e. a body especially chosen by the 
voters at large for the purpose, and invested with full powers, 
not only of drafting, but of adopting the instrument of gov- 
ernment. 1 Since 1835, when Michigan framed her Constitu- 
tion, the invariable practice in the Northern States has been 
for the Convention, elected by the voters, to submit, in accord- 
ance with the precedents set by Massachusetts in 1780, and by 
Maine in 1820, the draft Constitution framed by it to the citi- 
zens of the State at large, who voted upon it Yes or No. They 
usually vote on it as a whole, and adopt or reject it en bloc, 
but sometimes provision is made for voting separately on some 
particular point or points. In the Southern States the practice 
has varied, but the growing tendency has been to submit the 
draft to the people. In 1890, however, Mississippi enacted a 
new Constitution by a Convention alone ; and in Kentucky (in 
1891), after the draft Constitution which the Convention had 
prepared had been submitted to and accepted by a popular vote 
(as provided by the statute which summoned the convention), 
the Convention met again and made some alterations on which, 
strange to say, the people have not been since consulted. 2 

The people of a State retain for ever in their hands, alto- 
gether independent of the National government, the power of 
altering their Constitution. When a new Constitution is to be 
prepared, or the existing one amended, the initiative usually 
comes from the legislature, which (either by a simple majority, 
or by a two-thirds majority, or by a majority in two successive 

1 In Rhode Island and Connecticut the legislature continued the colonial 
Constitution. In South Carolina a body calling itself the "Provincial Con- 
gress " claimed to he the "General Assembly," or legislature of the colony, 
and as such enacted the Constitution. In the other revolting colonies, except 
Massachusetts, Conventions or Congresses enacted the Constitution, not sub- 
mitting it to the voters for ratification. In Massachusetts the Convention 
submitted its draft to the voters in 1780, and the voters adopted it, a previous 
draft tendered by the legislature in 1778 having been rejected. 

2 Proceedings were taken before the Court of Appeals of Kentucky to deter- 
mine the validity of these alterations, and the court by a majority upheld 
them, on the ground, it would seem, that the legislature and executive had 
treated them as operative. Sed qusere. It has also been suggested that the 
court, being itself the creature of the new Constitution, was not entitled to 
question title of its creator. The matter is further complicated by the fact 
that something similar had happened in 1850, when the last previous Constitu- 
tion was adopted, and that that Constitution did not, like the statute which 
created the Convention of 1890, prescribe a popular vote. 

VOL. I 2 F 



434 THE STATE GOVERNMENTS part ii 

legislatures, as the Constitution may in each instance provide) 
submits the matter to the voters in one of two ways. It may 
either propose to the people certain specific amendments, 1 or it 
may ask the people to decide by a direct popular vote on the 
propriety of calling a constitutional Convention to revise the 
whole existing Constitution. In the former case the amend- 
ments suggested by the legislature are directly voted on by the 
citizens ; in the latter the legislature, so soon as the citizens 
have voted for the holding of a convention, provides for the 
election by the people of this convention. When elected, the 
Convention meets, sets to work, goes through the old Consti- 
tution, and prepares a new one, which is then usually presented 
to the people for ratification or rejection- at the polls. Only 
in the little State of Delaware is the function of amending 
the Constitution still left to the legislature without the subse- 
quent ratification of a popular vote, subject, however, to the 
provision that changes must be passed by two successive legis- 
latures, and must have been put before the people at the elec- 
tion of members for the second. Some States provide for the 
submission to the people at fixed intervals, of seven, ten, six- 
teen, or twenty years, of the propriety of calling a convention 
to revise the Constitution, so as to secure that the attention 
of the people shall be drawn to the question whether their 
scheme of government ought or ought not to be changed. Be 
it observed, however, that whereas the Federal Constitution 
can be amended only by a vote of three-fourths of the States, 
a Constitution can in nearly every State be changed by a bare 
majority of the citizens voting at the polls. 2 Hence we may 
expect, and shall find, that these instruments arc altered more 

1 Iu New Hampshire the legislature has no power to propose amendments: 
so the local authorities take the sense of the people every seven years as to 
the need for a revising Convention. In some States the legislature ean do so 
only after stated intervals, e.g. of live years. 

2 Sometimes, however, an ahsolute majority of all the qualified voters is 
required. In Rhode Island (where the voting is in town and ward meetings) a 
three-fifths majority is needed, and in South Carolina the ratification of the 
next elected legislature by a two-thirds majority in each House is necessary. 
In Delaware the proposal to call a convention must he approved bya majority 
of all the voters, in Kentucky by at least one-fourth of the total number who 

voted at the last preceding general election. Delaware having during several 
years failed in the attempt to amend her Constitution (of 1831) hy the legis- 
lature, fell hack, in 1887, on the proposal to hold a constitutional convention, hut 
has not yet heeu able to secure a sufficiently large vote. 



chap, xxxvn STATE CONSTITUTIONS 435 

frequently and materially than the Federal Constitution has 
been. 

The tendency of late years has been to make the process of 
alteration quicker ; for recent Constitutions generally provide 
that one legislature, not two successive legislatures, may pro- 
pose an amendment, which shall at once take effect if accepted. 1 

A State Constitution is not only independent of the central 
national government (save in certain points already specified), 
it is also the fundamental organic law of the State itself. The 
State exists as a commonwealth by virtue of its Constitution, 
and all State authorities, legislative, executive, and judicial, 
are the creatures of, and subject to, the State Constitu- 
tion. 2 Just as the President and Congress are placed beneath 
the Federal Constitution, so the Governor and Houses of a 
State are subject to its Constitution, and any act of theirs 
done -either in contravention of its provisions, or in excess of 
the powers it confers on them, is absolutely void. All that 
has been said in preceding chapters regarding the functions of 
the courts of law where an Act of Congress is alleged to be 
inconsistent with the Federal Constitution, applies equally 
where a statute passed by a State legislature is alleged to 
transgress the Constitution of the State, and of course such 
validity may be contested in any court, whether a State court 
or a Federal court, because the question is an ordinary question 

1 The following provisions are found in the eight most recent Constitutions. 
In South Dakota, Montana, Idaho, Wyoming, Washington, two-thirds of 
all the members elected must in each House of the Legislature agree to propose 
an amendment. In Mississippi two-thirds of the members are required. In 
Kentucky three-fifths of all the members elected are required. In North Dakota 
a bare majority of each House of one Legislature, and a majority of all the 
members in each House of the next Legislature are required, the amendment 
being in every case ultimately submitted to the people. 

2 Some details as to the provisions of State Constitutions may be found in 
Stimson's American Statute Law, and in the article " States " in the American 
Cyclopsedia of Political Science. Of course the great authority is the collec- 
tion of the State Constitutions, embracing (together with the colonial char- 
ters) all that have been duly enacted since 1776, in the two thick quarto 
volumes entitled Federal and State Constitutions, published under the au- 
thority of Congress by Ben. Perley Poore, Washington, 1878. It is much to be 
wished that a biennial or even quinquennial supplement to this collection 
should be officially published, containing all the new constitutions and consti- 
tutional amendments. At present it is very difficult, especially for a resident 
in Europe, to ascertain exactly how the constitution of each State stands : and 
I ask indulgence for any errors into which I may, owing to this difficulty, have 
fallen. 



436 THE STATE GOVERNMENTS part ii 

of law, and is to be solved by determining whether or no a 
law of inferior authority is inconsistent with a law of supe- 
rior authority. Whenever in any legal proceeding before any 
tribunal, either party relies on a State statute, and the other 
party alleges that this statute is ultra vires of the State legis- 
lature, and therefore void, the tribunal must determine the 
question just as it would determine whether a bye-law made by 
a municipal council or a railway company was in excess of the 
law-making power which the municipality or the company had 
received from the higher authority which incorporated it and 
gave it such legislative power as it possesses. But although 
Federal courts are fully competent to entertain a question aris- 
ing on the construction of a State Constitution, their practice 
is to follow the precedent set by any decision of a court of the 
State in question, just as they would follow the decision of a 
French court in determining a point of French law. Each State 
must be assumed to know its own law better than a stranger 
can; and the supreme court of a State is held to be the 
authorized exponent of the mind of the people who enacted 
its Constitution. 

A State Constitution is really nothing but a law made di- 
rectly by the people voting at the polls upon a draft sub- 
mitted to them. The people when they so vote act as a 
primary and constituent assembling, just as if they were all 
summoned to meet in one place like the folkmoots of our 
Teutonic forefathers. It is only their numbers that prevent 
them from so meeting in one place, and oblige the vote to be 
taken at a variety of polling places. Hence the enactment of 
a Constitution is an exercise of direct popular sovereignty to 
which we find few parallels in modern Europe, though it was 
familiar enough to the republics of antiquity, and lias lasted 
till now in some of the cantons of Switzerland. 1 

The importance of this character of a State Constitution 
as a popularly-enacted law, overriding every minor State law, 
becomes all the greater when the contents of these Constitu- 
tions are examined. Europeans conceive of a constitution as 

1 Nowadays, however, the Landesgemeinden (which survive only in Uri, 

Unterwaldcn. (ilarus. and Appenzell, having been recently discontinued in 
Bchwyz and Zug) do not act as constituent or constitution-enacting bodies, 

though they still directly Legislate. 



chap, xxxvn STATE CONSTITUTIONS 437 

an instrument, usually a short instrument, which creates a 
frame of government, defines its departments and powers, and 
declares the " primordial rights " of the subject or citizen as 
against the rulers. An American State Constitution does this, 
but does more ; and in most cases, infinitely more. It deals 
with a variety of topics which in Europe would be left to the 
ordinary action of the legislature, or of administrative author- 
ities ; and it pursues these topics into a minute detail hardly to 
be looked for in a fundamental instrument. Some of these 
details will be mentioned presently. Meantime I will sketch 
in outline the frame and contents of the more recent constitu- 
tions, reserving for next chapter remarks on the differences of 
type between those of the older and those of the newer States. 
A normal Constitution consists of five parts : — 

I. The definition of the boundaries of the State. (This 
does not occur in the case of the older States.) 

II. The so-called Bill of Rights — an enumeration (whereof 
more anon) of the citizens' primordial rights to liberty of 
person and security of property. This usually stands at the 
beginning of the Constitution, but occasionally at the end. 

III. The frame of government — i.e. the names, functions, 
and powers of the legislative bodies (including provisions 
anent the elective suffrage), the executive officers, and the 
courts of justice. 

IV. Miscellaneous provisions relating to administration and 
law, including articles treating of education, of the militia, of 
taxation and revenue, of the public debts, of local government, 
of State prisons and hospitals, of agriculture, of labour, of 
impeachment, and of the method of amending the Constitu- 
tion, besides other matters still less political in their character. 
The order in which these occur differs in different instruments, 
and there are some in which some of the above topics are not 
mentioned at all. The more recent Constitutions and those of 
the newer States are much fuller on these points. 

Y. The Schedule, which contains provisions relating to the 
method of submitting the Constitution to the vote of the 
people, and arrangements for the transition from the previous 
Constitution to the new one which is to be enacted by that 
vote. Being of a temporary nature, the schedule is not 
strictly a part of the Constitution. 



438 THE STATE GOVERNMENTS part ii 



The Bill of Rights is historically the most interesting- part 
of these Constitutions, for it is the legitimate child and 
representative of Magna Charta, and of those other declara- 
tions and enactments, down to the Bill of Rights of the Act 
of 1 William and Mary, session 2, by which the liberties of 
Englishmen have been secured. Most of the thirteen colonies 
when they asserted their independence and framed their Con- 
stitutions inserted a declaration of the fundamental rights of the 
people, and the example then set has been followed by the 
newer States, and, indeed, by the States generally in their most 
recent Constitutions. Considering that all danger from the 
exercise of despotic power upon the people of the States by the 
executive has long since vanished, their executive authorities 
being the creatures of popular vote and nowadays rather too 
weak than too strong, it may excite surprise that these assertions 
of the rights and immunities of the individual citizen as against 
the government should continue to be repeated in the instru- 
ments of to-day. A reason may be found in the remarkable con- 
stitutional conservatism of the Americans, and in their fondness 
for the enunciation of the general maxims of political freedom. 
But it is also argued that these declarations of principle have 
a practical value, as asserting the rights of individuals and of 
minorities against arbitrary conduct by a majority in the 
legislature, which might, in the absence of such provisions, be 
tempted at moments of excitement to suspend the ordinary 
law and arm the magistrates with excessive powers. They are 
therefore, it is held, still safeguards against tyranny ; and they 
serve the purpose of solemnly reminding a State legislature 
and its officers of those fundamental principles which they 
ought never to overstep. 1 Although such provisions certainly 
do restrain a legislature in ways which the British Parliament 
would find inconvenient, few complaints of practical evils 
thence arising are heard. 

A general notion of these Bills of Rights may be gathered 
from that enacted for itself in 187!) by the State of California, 
printed in the Appendix to this volume. I may mention, in ad- 
dition, a few curious provisions which occur in some of them. 

All provide for full freedom of religious opinion and wor- 

1 Tho Influence of the Declaration of Independence of I77u is of course per- 
ceptible in them all. 



chap, xxxvii STATE CONSTITUTIONS 439 

ship, and for the equality before the law of all religious 
denominations and their members ; and many forbid the estab- 
lishment of any particular church or sect, and declare that no 
public money ought to be applied in aid of any religious body 
or sectarian institution. 1 But Delaware holds it to be "the 
duty of all men frequently to assemble for public worship"; 
and Vermont adds that " every sect or denomination of Chris- 
tians ought to observe the Sabbath or Lord's Day." And 
thirteen States declare that the provisions for freedom of con- 
science are not to be taken to excuse acts of licentiousness, or 
justify practices inconsistent with the peace and safety of the 
State, 2 Mississippi adding (1890) that they shall not be con- 
strued to exclude the Bible from use in schools, and Idaho 
denouncing bigamy and polygamy as crimes to be made pun- 
ishable. 

Louisiana (Constitution of 1879) declares that " all govern- 
ment of right originates with the people, is founded on their 
will alone, and is instituted solely for the good of the whole, 
deriving its just powers from the consent of the governed. Its 
only legitimate end is to protect the citizen in the enjoyment 
of life, liberty, and property. When it assumes other func- 
tions, it is usurpation and oppression." 

Thirty-one States declare that " all men have a natural, in- 
herent, and inalienable right to enjoy and defend life and lib- 
erty " ; and all of these, except the melancholy Missouri, add 
the " natural right to pursue happiness." 

Twenty-two declare that all men have " a natural right to 
acquire, possess, and protect property." 

Mississippi and Louisiana (Constitutions of 1868) provided 
that "the right of all citizens to travel upon public convey- 
ances shall not be infringed upon nor in any manner abridged." 
Both States have now dropped this injunction. 3 

1 Not till 1889, however, did New Hampshire strike out of her Constitution 
of 1792 a provision enabling the legislature to authorize towns to provide for 
the support of "public Protestant teachers of piety, religion, and morality." 

2 In Arkansas, Maryland, Mississippi, North Carolina, South Carolina, and 
Texas, a man is declared ineligible for office if he denies the existence of God ; 
in Pennsylvania and Tennessee he is ineligible if he does not believe in God, and 
in the existence of future rewards and punishments. In Arkansas and Mary- 
land such a person is also incompetent as a witness or juror. 

3 These provisions were inserted shortly after the Civil War in order to pro- 
tect the negroes. 



440 THE STATE GOVERNMENTS run- 11 

Kentucky (Constitution of 1891) lays down that '-absolute 
arbitrary power over the lives, liberty, and property of freemen 
exists nowhere in a republic, not even in the largest majority. 
All men when they form a social compact are equal. All 
power is inherent in the people, and all free governments are 
founded on their authority, and instituted for their peace, 
safety, happiness, and security, and the protection of property. 
For the advancement of these ends they have at all times an 
inalienable and indefeasible right to alter, reform, or abolish 
their government in such manner as they may deem p roper." ■ 

All in one form or another secure the freedom of writing 
and speaking opinions, and some add that the truth of a libel 
may be given in evidence. 2 

Nearly all secure the freedom of public meeting and petition. 
Considering that these are the last rights likely to be infringed 
by a State government, it is odd to find Florida in her Consti- 
tution of 1886 providing that " the people shall have the right 
to assemble together to consult for the common good, to instruct 
their representatives, and to petition the legislature for redress 
of grievances," and Kentucky in 1891 equally concerned to 
secure this right. 

Many provide that no ex post facto law, nor law impairing 
the obligation of a contract, shall be passed by the State legis- 
lature; and that private property shall not be taken by the 
State without just compensation. 

Many forbid the creation of any title of nobility. 

Many declare that the right of citizens to bear arms shall 
never be denied, a provision which might be expected to prove 
inconvenient where it was desired to check the habit of carry- 
ing revolvers. Tennessee therefore (Constitution of 1870) pru- 
dently adds that "the legislature shall have power to regulate 
the wearing of arms, with a view to prevent crime." So also 
Texas, where such a provision is certainly not superfluous. 

1 Until 1891, Kentucky added, " The right of property is before and higher 
than any constitutional sanction; and the right of the owner of a slave to 
such slave ami its increase is the same and as Inviolable as the right of the 
owner of any property whatever," although this doctrine had been annulled, 
in effect, by the thirteenth amendment to the Federal Constitution. 

2 A curious survival may be noted in the provisions enabling the jury to 
determine law as well as laet in Libel eases: ,-../. Mississippi (1890) and Ken- 
tucky (1891) in criminal, Wyoming (1889) also in civil cases. 



chap, xxxvn STATE CONSTITUTIONS 441 

And six others 2 allow the legislature to forbid the carrying of 
concealed weapons. 

Some declare that the estates of snicides shall descend in 
the ordinary course of law. 

Most provide that conviction for treason shall not work cor- 
ruption of blood nor forfeiture of estate. 

Eight forbid white and coloured children to be taught in the 
same public schools, while Wyoming provides that no distinc- 
tion shall be made in the public schools on account of sex, 
race, or colour. 

Many declare the right of trial by jury to be inviolate, even 
while permitting the parties to waive it. Idaho empowers a 
jury in civil cases to render a verdict by a three-fourths major- 
ity, and Wyoming permits it to consist of less than twelve. 

Some forbid imprisonment for debt, except in case of fraud, 
and secure the acceptance of reasonable bail, except for the 
gravest charges. 2 

Several declare that "perpetuities and monopolies are con- 
trary to the genius of a free State, and ought not to be allowed.'' 

Many forbid the granting of any hereditary honours, privi- 
leges, or emoluments. 

North Carolina declares that "as political rights and privi- 
leges are not dependent upon or modified by property, no prop- 
erty qualification ought to affect the right to vote or hold 
office"; and also, "secret political societies are dangerous to 
the liberties of a free people, and should not be tolerated." 

Massachusetts sets forth, as befits a Puritan State, high moral 
views: "A frequent recurrence to the fundamental principles 
of the Constitution, and a constant adherence to those of piety, 
justice, moderation, temperance, industry, and frugality, are 
absolutely necessary to preserve the advantages of liberty and to 
maintain a free government. The people ought consequently to 
have a particular attention to all those principles in the choice 
of their officers and representatives, and they have a right to 

1 North Carolina, Mississippi, Missouri, Louisiana, Colorado, and Montana, 
States in which daily experience shows that the measures taken have not 
proved successful. 

2 Mississippi (Const, of 1890) allows courts of justice to exclude, in some 
classes of prosecutions, persons not necessary for the conduct of the trial. 
Wyoming (1889) provides that no person detained as a witness be confined in 
any room where criminals are imprisoned. 



442 > THE STATE GOVERNMENTS part ii 

require of their law-givers and magistrates an exact and con- 
stant observance of them." 

South Dakota and Wyoming provide that aliens shall have 
the same rights of property as citizens. Montana confers this 
benefit as respects mining property, while Washington prohibits 
the ownership of land by aliens, except for mining purposes. 
New York (Const, of 1846) provides : "All lands within this 
State are declared to be allodial, so that, subject only to the 
liability to escheat, the entire and absolute property is vested in 
the owners, according to the nature of their respective estates." 

North Dakota (1889) enacts: "Every citizen shall be free 
to obtain employment wherever possible, and any person, cor- 
poration, or agent thereof, maliciously interfering or hindering 
in anyway any citizen from obtaining or enjoying employment 
already obtained from any other corporation or person, shall be 
deemed guilty of a misdemeanor." 

Maryland (Const, of 1867) declares that "a long continuance 
in the executive departments of power or trust is dangerous to 
liberty ; a rotation, therefore, in those departments is one of the 
best securities of permanent freedom." She also pronounces 
all gifts for any religious purpose (except of a piece of land 
not exceeding five acres for a place of worship, parsonage, or 
burying-ground) to be void unless sanctioned by the legislature. 

Montana and Idaho declare the use of lands for constructing 
reservoirs, water-courses, or ways for the purposes of mining 
or irrigation, to be a public use, subject to State regulation. 

These instances, a few out of many, may suffice to show how 
remote from the common idea of a Bill of Rights, are some of 
the enactments which find a place under that heading. The 
constitution makers seem to have inserted here such doctrines 
or legal reforms as seemed to them matters of high import or 
of wide application, especially when they could find no suitable 
place for them elsewhere in the instrument. 

Of the articles of each State Constitution which contain the 
frame of State government it will be more convenient to speak 
in the chapters which describe the mechanism and character 
of the governments and administrative systems of the several 
States. I pass on therefore to what have been classed as the 
Miscellaneous Provisions. These are of great interest as reveal- 
ing the spirit and tendencies of popular government in America, 



chap, xxxvii STATE CONSTITUTIONS 443 

the economic and social condition of the country, the mischiefs 
that have arisen, the remedies applied to these mischiefs, the 
ideas and beliefs of the people in matters of legislation. 

Among such provisions we find a great deal of matter which 
is in no distinctive sense constitutional law, but general law, 
e.g. administrative law, the law of judicial procedure, the ordi- 
nary private law of family, inheritance, contract, and so forth ; 
matter therefore which seems out of place in a constitution 
because fit to be dealt with in ordinary statutes. We find mi- 
nute provisions regarding the management and liabilities of 
banking companies, of railways, or of corporations generally ; 
regulations as to the salaries of officials, the quorum of courts 
sitting in banco, the length of time for appealing, the method 
of changing the venue, the publication of judicial reports; 
detailed arrangements for school boards and school taxation 
(with rules regarding the separation of white and black chil- 
dren in schools), for a department of agriculture, a canal board, 
or a labour bureau; we find a prohibition of lotteries, of polyg- 
amy, of bribery, of lobbying, of the granting of liquor licences, 
of usurious interest on money, an abolition of the distinction 
between sealed and unsealed instruments, a declaration of the 
extent of a mechanic's lien for work done. We even find the 
method prescribed in which stationery and coals for the use of 
the legislature shall be contracted for, and provisions for fixing 
the rates which may be charged for the storage of corn in 
warehouses. The framers of these more recent constitutions 
have in fact neither wished nor cared to draw a line of distinc- 
tion between what is proper for a constitution and what ought 
to be left to be dealt with by the State legislature. And, in the 
case of three-fourths at least of the States, no such distinction 
now, in fact, exists. 

How is this confusion to be explained ? Four reasons may 
be suggested. 

The Americans, like the English, have no love for scientific 
arrangement. Although the Constitutions have been drafted 
by lawyers, and sometimes by the best lawyers of each State, 
logical classification has not been sought after. 

The people found the enactment of a new Constitution a 
convenient opportunity for enunciating doctrines they valued 
and carrying through reforms they desired. It was a simpler 



444 THE STATE GOVEBNMENTS part n 

and quicker method than waiting for legislative action, so, 
when there was a popular demand for the establishment of an 
institution, or for some legal change, this was shovelled into 
the new Constitution and enacted accordingly. 

The peoples of the States have come to distrust their respect- 
ive legislatures. Hence they desire not only to do a thing forth- 
with and in their own way rather than leave it to the chance 
of legislative action, but to narrow as far as they conveniently 
can (and sometimes farther) the sphere of the legislature. 

There is an unmistakable wish in the minds of the people 
to act directly rather than through their representatives in 
legislation. The same conscious relish for power which leads 
some democracies to make their representatives mere delegates, 
finds a further development in passing by the representatives, 
and setting the people itself to make and repeal laws. 

Those who have read the chapters describing the growth 
and development of the Federal Constitution, will naturally 
ask how far the remarks there made apply to the Constitu- 
tions of the several States. 

These instruments have less capacity for expansion, whether 
by interpretation or by usage, than the Constitution of the 
United States : firstly, because they are more easily, and 
therefore more frequently, amended or recast; secondly, be- 
cause they are far longer, and go into much more minute detail. 
The Federal Constitution is so brief and general that custom 
must fill up what it has left untouched, and judicial construc- 
tion evolve the application of its terms to cases they do not 
expressly deal with. But the later State Constitutions are so 
full and precise that they need little in the way of expansive 
construction, and leave comparatively little room for the action 
of custom. 

The rules of interpretation are in the main the same as 
those applied to the Federal Constitution. One important 
difference must, however, be noted, springing from the differ- 
ent character of the two governments. The National Govern- 
ment is an artificial creation, with no powers exec 1 })! those 
conferred by the instrument which created it. A State Gov- 
ernment is a natural growth, which prima facie possesses all 
the powers incident to any government whatever. Hence, it 
the question arises whether a State legislature can pass a law 



chap, xxxvn STATE CONSTITUTIONS 445 

on a given subject, the presumption is that it can do so : and 
positive grounds must be adduced to prove that it cannot. It 
may be restrained by some inhibition either in the Federal Con- 
stitution, or in the Constitution of its own State. But such 
inhibition must be affirmatively shown to have been imposed, 
or, to put the same point in other words, a State Constitution 
is held to be, not a document conferring defined and specified 
powers on the legislature, but one regulating and limiting that 
general authority which the representatives of the people 
enjoy ipso jure by their organization into a legislative body. 

" It has never been questioned that the American legislatures 
have the same unlimited power in regard to legislation which 
resides in the British Parliament, except where they are re- 
strained by written Constitutions. That must be conceded to 
be a fundamental principle in the political organization of the 
American States. We cannot well comprehend how, upon prin- 
ciple, it could be otherwise. The people must, of course, pos- 
sess all legislative power originally. They have committed this 
in the most general and unlimited manner to the several State 
legislatures, saving only such, restrictions as are imposed by the 
Constitution of the United States or of the particular State in 
question." 1 

"The people, in framing the Constitution, committed to the 
legislature the whole law-making powers of the State which 
they did not expressly or impliedly withhold. Plenary power in 
the legislature, for all purposes of civil government, is the rule. 
A prohibition to exercise a particular power is an exception." 2 

It must not, however, be supposed from these dicta that even 
if the States were independent commonwealths, the Federal 
Government having disappeared, their legislatures would enjoy 
anything approaching the omnipotence of the British Parlia- 
ment, "whose power and jurisdiction is," says Sir Edward 
Coke, " so transcendent and absolute that it cannot be confined, 
either for persons or causes, within any bounds." " All mis- 
chiefs and grievances," adds Blackstone, " operations and rem- 
edies that transcend the ordinary course of the laws are within 
the reach of this extraordinary tribunal." Parliament being 

1 Redfield, C.-J., in 27 Vermont Reports, p. 142, quoted by Cooley, Constit. 
Limit., p. 108. 

2 Denio, C.-J., in 15 N. Y. Reports, p. 543, quoted ibid. p. 107. 



446 THE STATE GOVERNMENTS i.vj.t ii 

absolutely sovereign, can command, or extinguish and swallow 
up the executive and the judiciary, appropriating to itself their 
functions. But in America, a legislature is a legislature and 
nothing more. The same instrument which creates it creates 
also the executive governor and the judges. They hold by 
a title as good as its own. If the legislature should pass a law 
depriving the governor of an executive function conferred by 
the Constitution, that law would be void. If the legislature 
attempted to interfere with the jurisdiction of the courts, their 
action would be even more palpably illegal and ineffectual. 1 

The executive and legislative departments of a State govern- 
ment have of course the right and duty of acting in the first 
instance on their view of the meaning of the Constitution. 
But the ultimate expounder of that meaning is the judiciary; 
and when the courts of a State have solemnly declared the true 
construction of any provision of the Constitution, all persons 
are bound to regulate their conduct accordingly. As was ob- 
served in considering the functions of the Federal judiciary 
(Chapter XXIII.), this authority of the American courts is not 
in the nature of a political or discretionary power vested in 
them ; it is a necessary consequence of the existence of a fun- 
damental law superior to any statute which the legislature may 
enact, or to any right which a governor may conceive himself 
to possess. 2 To quote the words of an American decision : — 

"In exercising this high authority the judges claim no judi- 
cial supremacy ; they are only the administrators of the public 
will. If an Act of the legislature is held void, it is not because 
the judges have any control over the legislative power, but be- 
cause the Act is forbidden by the Constitution, and because the 

1 It has, for instance, been held that a State legislature cannot empower elec- 
tion boards to decide whether a person lias by duelling forfeited his right to 
vote or hold office, this inquiry being judicial and proper only for the regular 
tribunals of the State. — Cooley, Constit. Limit., p. 112. Acts passed by legis- 
latures affecting some judicial decision already given, have repeatedly been 
held void by the Courts. They would be doubly void as also transgressing the 
Federal Constitution. 

2 In Switzerland, however, the cantonal courts have not, except perhaps in 
Uri, the right to declare invalid a law made by a cantonal legislature, the leg- 
islature being apparently deemed the judge of its own powers. A cantonal law 
may, however, he quashed, in some eases, by the Federal Council, or pro- 
nounced invalid by the Federal Court. See an interesting discussion of the 

question in Dubs, Das oeffentliche Recht der Schvoeizerischen EidgmMfen- 
schaft, Tart I. p. 113. 



chap, xxxvn STATE CONSTITUTIONS 447 

will of the people, which is therein declared, is paramount to 
that of their representatives expressed in any law." 

It is a well-established rule that the judges will always lean 
in favour of the validity of a legislative Act ; that if there be 
a reasonable doubt as to the constitutionality of a statute they 
will solve that doubt in favour of the statute ; that where the 
legislature has been left a discretion they will assume the dis- 
cretion to have been wisely exercised ; that where the construc- 
tion of a statute is doubtful, they will adopt such construction 
as will harmonize with the Constitution, and enable it to take 
effect. So it has been well observed that a man might with 
perfect consistency argue as a member of a legislature against 
a bill on the ground that it is unconstitutional, and after hav- 
ing been appointed a judge, might in his judicial capacity sus- 
tain its constitutionality. Judges must not inquire into the 
motives of the legislature, nor refuse to apply an Act because 
they may suspect that it was obtained by fraud or corruption, 
still less because they hold it to be opposed to justice and 
sound policy. "A court cannot declare a statute unconstitu- 
tional and void solely on the ground of unjust and oppressive 
provisions, or because it is supposed to violate the natural, 
social, or political rights of the citizen, unless it can be shown 
that such injustice is prohibited, or such rights guaranteed or 
protected, by the Constitution. 1 . . . But when a statute is 
adjudged to be unconstitutional, it is as if it had never been. 
Eights cannot be built up under it; contracts which depend 
upon it for their consideration are void ; it constitutes a pro- 

1 This was not always admitted ; just as in England it was at one time held 
that natural justice and equity were above Acts of Parliament. So in the case 
of Gardner v. The Village of Newburg (Johnson's Chancery Reports, N. Y. 
162) , the New York legislature had authorized the village to supply itself with 
water from a stream, hut had made no provision for indemnifying the owners 
of lands through which the stream flowed for the injury they must suffer from 
the diversion of the water. The Constitution of New York at that time con- 
tained no provision prohibiting the taking of private property for public use 
without compensation ; notwithstanding this, Chancellor Kent restrained the 
village from proceeding upon the broad general principle which he found in 
Magna Charta, in a statutory Bill of Rights, which of course could not control 
the legislature, and in Grotius PufTendorf and Bynkershoek. (I owe this 
reference to the kindness of Mr. Theodore Bacon.) 

As the doctrine stated in the text has been doubted by some critics, I may 
now (Sept. 1892) refer for further confirmation of it to Dash v. Van Kleech, 7 
Johns. 477 (words of Chancellor Kent), and People v. Gillson, 109 N. Y. 398. 



448 THE STATE GOVERNMENTS tart ii 

tection to no one who has acted under it ; and no one can 
be punished for having refused obedience to it before the 
decision was made. And what is true of an Act void in toto, 
is true also as to any part of an Act which is found to be 
unconstitutional, and which consequently is to be regarded as 
having never at any time been possessed of legal force." 1 

It may be thought, and the impression will be confirmed 
when we consider as well the minuteness of the State Con- 
stitutions as the profusion of State legislation and the incon- 
siderate haste with which it is passed, that as the risk of a 
conflict between the Constitution and statutes is great, so the 
inconveniences of a system under Avhich the citizens cannot tell 
whether their obedience is or is not due to a statute must be 
serious. How is a man to know whether he has really ac- 
quired a right under a statute? how is he to learn whether 
to conform his conduct to it or not ? How is an investor to 
judge if he may safely lend money which a statute has em- 
powered a community to borrow, when the statute may be 
itself subsequently overthrown? 

To meet these difficulties some State Constitutions 2 provide 
that the judges of the supreme court of the State may be 
called upon by the governor or either house of the legislature 
to deliver their opinions upon questions of law, without wait- 
ing for these questions to arise and be determined in an ordi- 
nary lawsuit. 3 This expedient seems a good one, for it procures 

1 Cooley, Constit. Limit, pp. 200, 227. 

2 Massachusetts, Maine, New Hampshire, Rhode Island, Colorado, Florida, 
and South Dakota. In Vermont a similar power is given by statute. In South 
Dakota the governor may require it " upon important questions of law involv- 
ing the exercise of his executive powers and upon solemn occasions." In 
Florida it is only the governor to whom the power has been given, and whereas 
under the Constitution of 1868 he could obtain the opinion of the justices 
"upon any point of law," he can by the Constitution of 1886 require it only 
"upon any question affecting his executive powers and duties." A similar 
provision was inserted in the Constitution of Missouri of 1866, but omitted in 
the revised (and now operative) Constitution of 187."). apparently because the 
judges had so often refused to give their advice when asked for it by a house 
of the legislature, that there seemed little use in retaining the enactment. In 
the other States the judges have apparently always consented to answer, save 
on one or two occasions in Massachusetts. See on the whole subject an inter- 
esting pamphlet by Mr. J. B. Thayer, of the Harvard University Law School. 

8 The judges of the supreme court of Massachusetts soggesl in their very 
learned and instructive opinion, delii ered to the legislature, December 31, 1878, 

that this provision, which appears first in the Massachusetts Constitution of 



chap, xxxvn STATE CONSTITUTIONS 449 

a judicial and non-partisan interpretation, and procures it at 
once before rights or interests have been created. But it is 
open to the objection that the opinions so pronounced are 
given before cases have arisen which show how in fact a stat- 
ute is working, and what points it may raise; and that the 
judges have not, as in contested lawsuits, the assistance of 
counsel arguing for their respective clients. And this is per- 
haps the reason why in most of the States where the provision 
exists, the judges have declared that they act under it in a 
purely advisory capacity, and that their deliverances are mere 
expressions of opinion, not binding upon them should the point 
afterwards arise in a suit involving the rights of parties. 1 

The highest court of a State may depart from a view it has 
previously laid down, even in a legal proceeding, regarding the 
construction of the Constitution, that is to say, it has a legal 
right to do so if convinced that the former view was wrong. 
But it is reluctant to do so, because such a course unsettles the 
law and impairs the respect felt for the bench. And there is 
less occasion for it to do so than in the parallel case of the su- 
preme Federal court, because as the process of amending a 
State Constitution is simpler and speedier than that of alter- 
ing the Federal Constitution, a remedy can be more easily 
applied to any mistake which the State judiciary has com- 
mitted. This unwillingness to unsettle the law goes so far 
that State courts have sometimes refused to disturb a practice 
long acquiesced in by the legislature, which they have never- 
theless declared they would have pronounced unconstitutional 
had it come before them while still new. 

1780, and was doubtless borrowed thence by the other States, " evidently had 
in view the usage of the English Constitution, by which the King as well as 
the House of Lords, whether acting in their judicial or in their legislative 
capacity, had the right to demand the opinion of the twelve judges of Eng- 
land." This is still sometimes done by the House of Lords acting in their 
judicial capacity; but the opinions of the judges so given are not necessarily 
followed by that House, and though always reported are not deemed to be 
binding pronouncements of law similar to the decisions of a court. 

1 Mr. Thayer shows, by an examination of the reported instances, that in 
Massachusetts, New Hampshire, and Ehode Island, as also in Missouri from 
1865 to 1875, the courts held that their opinions rendered under these provisions 
of the State Constitutions were not to be deemed judicial determinations, 
equal in authority to decisions given in actual litigation, but were rather 
prima facie impressions, which the judges ought not to hold themselves 
bound by, when subsequently required to determine the same point in an 
action or other legal proceeding. It is otherwise in Maine and Colorado. 
VOL. I 2 G 



CHAPTER XXXVIII 

THE DEVELOPMENT OF STATE CONSTITUTIONS 

It was observed in last chapter that the State Constitutions 
furnish invaluable materials for history. Their interest is all 
the greater, because the succession of Constitutions and amend- 
ments to Constitutions from 1776 till to-day enables the annals 
of legislation and political sentiment to be read in these docu- 
ments more easily and succinctly than in any similar series of 
laws in any other country. They are a mine of instruction 
for the natural history of democratic communities. Their 
fulness and minuteness make them, so to speak, more pictorial 
than the Federal Constitution. They tell us more about the 
actual methods and conduct of the government than it does. 
If we had similar materials concerning the history of as many 
Greek republics during the ages of Themistocles and Pericles, 
we could rewrite the history of Greece. Some things, how- 
ever, even these elaborately minute documents do not tell us. 
No one could gather from them what were the modes of doing 
business in the State legislatures, and how great a part the 
system of committees plays there. . No one could learn what 
manner of men constitute those bodies and determine their 
character. No one would know that the whole machinery is 
worked by a restlessly active party organization. Nevertheless 
they are so instructive as records of past movements, and as an 
index to the present tendencies of American democracy, that 
I heartily regret that the space at my disposal permits me to 
make only a sparing use of the materials which I gathered 
during many months spent in studying the one hundred and 
thirteen Constitutions enacted since the Declaration of Inde- 
pendence. 1 

1 1 venture again to commend the study of these constitutions to the philo- 
sophic Inquirer into \vh:it may be called the science Of comparative politics. 
450 



chap, xxxvin DEVELOPMENT OF CONSTITUTIONS 451 

Three periods may be distinguished in the development of 
State Governments as set forth in the Constitutions, each period 
marked by an increase in the length and minuteness of those 
instruments. 

The first period covers about thirty years from 1776 down- 
wards, and includes the earlier Constitutions of the original 
thirteen States, as well as of Kentucky, Vermont, Tennessee, 
and Ohio. 

Most of these Constitutions were framed under the impres- 
sions of the Eevolutionary War. They manifest a dread of 
executive power and of military power, together with a dis- 
position to leave everything to the legislature, as being the 
authority directly springing from the people. The election of 
a State governor is in most States vested in the legislature. 
He is nominally assisted, but in reality checked, by a council 
not of his own choosing. He has not (except in Massachu- 
setts) a veto on the Acts of the legislature. 1 He has not, like 
the royal governors of colonial days, the right of adjourning 
or dissolving it. The idea of giving power to the people 
directly has scarcely appeared, because the legislature is con- 
ceived as the natural and necessary organ of popular govern- 
ment, much as the House of Commons is in England. And 
hence many of these early Constitutions consist of little beyond 
an elaborate Bill of Rights and a comparatively simple outline 
of a frame of government, establishing a representative legis- 
lature, 2 with a few executive officers and courts of justice 
carefully separated therefrom. 

The second period covers the first half of the present century 

Both among the pre-Revolutionary charters and the State constitutions he will 
find matter full of instruction. Among the former I may especially refer to the 
Frame of Government of Pennsylvania, 1682 and 1683, and to the Fundamental 
Constitutions of Carolina of 1669. These last were framed hy John Locke, 
and revised hy the first Lord Shaftesbury. They were found unsuitable, were 
only partially put in force, and were abrogated by the proprietors in 1693, but 
they are scarcely less interesting to the student of history on that account. 

1 In New York a veto on Acts of the legislature was by the first constitu- 
tion vested in the Government and judges of the highest State court, acting 
together. 

2 The wide powers of these early legislatures are witnessed to by the fear 
which prudent statesmen entertained of their action. Madison said, in the 
Constitutional Convention of 1787, " Experience proves a tendency in our gov- 
ernments to throw all power into the legislative vortex. The executives of 
the States are little more than ciphers; the legislatures are omnipotent." 



452 THE STATE GOVERNMENTS 



down to the time when the intensity of the party struggles over 
slavery (1850-60) interrupted to some extent the natural proc- 
esses of State development. It is a period of the democrat- 
ization of all institutions, a democratization due not only to 
causes native to American soil, such as the supremacy in 
politics of the generation who had been boys during the Revo- 
lutionary War, but to the influence upon the generation which 
had then come to manhood of French republican ideas, an 
influence which declined after 1805 and ended with 1851, since 
which time French examples and ideas have counted for very 
little. Such provisions for the maintenance of religious insti- 
tutions by the State as had continued to exist are now swept 
away. The principle becomes established (in the Xorth and 
West) that constitutions must be directly enacted by popular 
vote. The choice of a governor is taken from the legislature 
to be given to the people. Property qualifications are abol- 
ished, 1 and a suffrage practically universal, except that it often 
excludes free persons of colour, is introduced. Even the judges 
are not spared. Many Constitutions shorten their term, and 
direct them to be chosen by popular vote. The State has 
emerged from the English conception of a community acting 
through a ruling legislature, for the legislature begins to be 
regarded as being only a body of agents exercising delegated 
and restricted powers, and obliged to recur to the sovereign 
people (by asking for a constitutional amendment) when it 
seeks to extend these powers in any particular direction. The 
increasing length of the constitutions during this half century 
shows how the range of the popular vote has extended, for these 
documents now contain a mass of ordinary law on matters which 
in the early days would have been left to the legislatures. 

In the third period, which begins from about the time of the 
Civil War, a slight reaction may be discerned, not against 
popular sovereignty, which is stronger than ever, but in the 
tendency to strengthen the executive and judicial departments. 
The governor had begun to receive in the second period, and lias 
now in every State but four, a veto on the acts of the legis- 
lature. His tenure of office lias been generally lengthened; 
the restrictions on his re-eligibility generally removed. In 

1 Though Massachusetts forgot till 1892 to abolish the property qualification 
lor her Governorship. 



chap, xxxvin DEVELOPMENT OF CONSTITUTIONS 453 

many States the judges have been granted larger salaries, and 
their terms of office lengthened. Some constitutions have 
even transferred judicial appointments from the vote of the 
people to the executive. But the most notable change of all 
has been the narrowing of the competence of the legislature, 
and the fettering its action by complicated restrictions. It 
may seem that to take powers away from the legislature is to 
give them to the people, and therefore another step towards 
pure democracy. But in America this is not so, because a 
legislature always yields to any popular clamour, however 
transient, while direct legislation by the people involves delay. 
Such provisions are therefore conservative in their results, and 
are really checks imposed by the citizens upon themselves. 

This process of development, which has first exalted and 
then depressed the legislature, which has extended the direct 
interference of the people, which has changed the Constitution 
itself from a short into a long, a simple into a highly complex 
document, has of course not yet ended. Forces are already at 
work which will make the constitutions of forty years hence 
different from those of to-day. To conjecture the nature of 
these forces we must examine a little further the existing 
constitutions of the States, especially the later among them ; 
and more particularly that remarkable group enacted in 1889 
by the six commonwealths which were admitted to the Union 
in 1889 and 1890. We must also distinguish between different 
types of constitution, corresponding to the different parts of the 
Union in which the States that have framed them are situate. 

Three types were formerly distinguishable, the old colonial 
type, best seen in New England and the older middle States, 
the Southern or Slave State type (in which the influence of 
the first Constitution of Virginia was noticeable), and the new 
or Western type. At present these distinctions are less 
marked. All the Southern States have given themselves new 
constitutions since the war ; and the differences between these 
and the new constitutions of the North-Western and Pacific 
States are not salient. This is because the economic and social 
changes produced by the War of Secession and abolition of 
slavery broke to pieces the old social conditions, and made 
these Southern States virtually new communities like those of 
the West. There is still, however, a strong contrast between 



454 THE STATE GOVERNMENTS part ii 

the New England States, to which for this purpose we may 
add New Jersey and Delaware, whose present constitutions 
all date from the period between 1780 and 1844, and the 
Southern and Western States, nearly all of whose constitu- 
tions are subsequent to that year. In these older States the 
power of the executive is generally greater. The judges are 
frequently named by the governor, and not elected by the 
people. The electoral districts are not always equal. The 
constitutions are not so minute, and therefore the need of 
recurring to the people to change them arises less frequently. 
Taking the newer, and especially the Western and Southern 
Constitutions, and remembering that each is the work of an 
absolutely independent body, which (subject to the Federal 
Constitution) can organize its government and shape its law 
in any way it pleases, so as to suit its peculiar conditions and 
reflect the character of its population, one is surprised to find 
how similar these newer instruments are. There is endless 
variety in details, but a singular agreement in essentials. The 
influences at work, the tendencies which the constitutions of 
the last forty years reveal, are evidently the same over the 
whole Union. What are the chief of those tendencies ? One 
is for the constitutions to grow longer. This is an absolutely 
universal rule. Virginia, for instance, put her first constitu- 
tion, that of 1776, into four closely printed quarto pages, that 
is, into about three thousand two hundred words. 1 In 1830, 
she needed seven pages ; in 1850, eighteen pages ; in 1870, 
twenty-two pages, or seventeen thousand words. Texas has 
doubled the length of her constitution from sixteen quarto 
pages in 1845 to thirty-four in 1876. Pennsylvania was con- 
tent in 1776 with a document of eight pages, which for those 
times was a long one ; she now requires twenty-three. The 
constitution of Illinois filled ten pages in 1818 ; in 1870 it had 
swollen to twenty-five. These are fair examples, but the ex- 
tremes are marked by the constitution of Now Hampshire of 
1776, which was of about six hundred words (not reckoning 
the preamble), and the constitutions of Missouri of 1875 and 
of South Dakota of 1889, which have each more than twenty- 
six thousand words. The new constitutions are longer, not 

1 The full quarto page in Poore's edition of The Federal and z>ttitc Constitu- 
tion* contains about eight hundred words. 



chap, xxxvm DEVELOPMENT OF CONSTITUTIONS 455 

only because new topics are taken up and dealt with, but 
because the old topics are handled in far greater detail. Such 
matters as education, ordinary private law, railroads, State 
and municipal indebtedness, were either untouched or lightly 
touched in the earlier instruments. The provisions regarding 
the judiciary and the legislature, particularly those restricting 
the power of the latter, have grown far more minute of late 
years, as abuses of power became more frequent, and the 
respect for legislative authority less. As the powers of a 
State legislature are prima facie unlimited, these bodies can 
be restrained only by enumerating the matters withdrawn 
from their competence, and the list grows always ampler. The 
time might almost seem to have come for prescribing that, 
like Congress, they should be entitled to legislate on certain 
enumerated subjects only, and be always required to establish 
affirmatively their competence to deal with any given topic. 

I have already referred to the progress which the newer con- 
stitutions show towards more democratic arrangements. The 
suffrage is now in almost every State enjoyed by all adult 
males. Citizenship is quickly and easily accorded to immi- 
grants. And, most significant of all, the superior judges, who 
were formerly named by the governor, or chosen by the legis- 
lature, and who held office during good behaviour, are now in 
most States elected by the people for fixed terms of years. I 
do not ignore the strongly-marked democratic character of 
even the first set of constitutions, formed at and just after the 
Eevolution; but that character manifested itself chiefly in 
negative provisions, i.e. in forbidding exercises of power by the 
executive, in securing full civil equality and the primordial 
rights of the citizen. The new democratic spirit is positive 
as well as negative. It refers everything to the direct arbitra- 
ment of the people. It calls their will into constant activity, 
sometimes by the enactment of laws on various subjects in the 
Constitution, sometimes by prescribing to the legislature the 
purposes which legislation is to aim at. Even the tendency 
to support the executive against the legislature is evidence not 
so much of respect for authority as of the- confidence of the 
people that the executive will be the servant of popular opin- 
ion, prepared at its bidding to restrain that other servant — 
the legislature — who is less trusted, because harder to fix with 



456 THE STATE GOVERNMENTS i-akt ii 

responsibility for misdoing. On the whole, therefore, there 
can be no doubt that the democratic spirit is now more ener- 
getic and pervasive than it was in the first generation. It is 
a different kind of spirit. It is more practical, more disposed 
to extend the sphere of governmental interference, less con- 
tent to rely on general principles. One discovers in the word- 
ing of the most recent constitutions a decline of that touching 
faith in the efficacy of broad declarations of abstract human 
rights which marked the disciples of Jefferson. But if we 
compare the present with the second or Jacksonian age, it may 
be said that there has been in progress for some years past 
a certain anti-democratic reaction, fainter than the levelling 
movement of sixty years ago, and not likely to restore the state 
of things that existed before that movement, yet noticeable as 
showing that the people do learn by experience, and are not 
indisposed to reverse their action and get clear of the results 
of past mistakes. The common saying that on the road to 
democracy there are vestigia nulla retrorsum is not universally 
true in America. 

That there are strong conservative tendencies in the United 
States is a doctrine whose truth will be illustrated later on. 
Meanwhile it is worth while to ask how far the history of 
State constitutions confirms the current notion that democra- 
cies are fond of change. The answer is instructive, because 
it shows how flimsy are the generalizations which men often 
indulge in when discussing forms of government, as if all com- 
munities with similar forms of government behaved in the 
same way. All the States of the Union are democracies, and 
democracies of nearly the same type. Yet while some change 
their constitutions frequently, others scarcely change theirs at 
all. Let me recall the reader's mind to the distinction already 
drawn between the older or New England type and the newer 
type, which we find in the Southern as well as the Western 
States. It is among the latter that changes are frequent. 
Louisiana, for instance, whose State life began in 1812, has 
had six complete new constitutions, without counting the so- 
called Secession Constitution of 1861. So has Georgia Ar- 
kansas, which dates from L836, has had live, besides many 
amendments passed in the intervals. Virginia and South 
Carolina (both original states) have had live each. Among 



chap, xxxvin DEVELOPMENT OE CONSTITUTIONS 457 

the Northern States, Pennsylvania (an original State) has had 
four ; Illinois, dating from 1818, three ; New York, three ; 
Delaware, three; whereas Connecticut and Ehode Island 
(both original States) and Maine (dating from 1820), have 
had only one each, Vermont and New Hampshire two each. 
Massachusetts still lives under her Constitution of 1780, which 
has indeed been amended at various dates, yet not to such an 
extent as to efface its original features. Of the causes of these 
differences I will now touch on two only. One is the attach- 
ment which in an old and historic, a civilized and well-edu- 
cated community, binds the people to their accustomed usages 
and forms of government. It is the newer States, without a 
past to revere, with a population undisciplined or fluctuating, 
that are prone to change. In well-settled commonwealths the 
longer a constitution has stood untouched, the longer it is 
likely to stand, because the force of habit is on its side, be- 
cause an intelligent people learns to value the stability of its 
institutions, and to love that which it is proud of having 
created. 

The other cause is the difference between the swiftness with 
which economic and social changes move in different parts of 
the country. They are the most constant sources of political 
change, and find their natural expression in alterations of the 
Constitution. Such changes have been least swift and least 
sudden in the New England and Middle States, though in some 
of the latter the growth of great cities, such as New York and 
Philadelphia, has induced them, and induced therewith a ten- 
dency to amend the constitutions so as to meet new conditions 
and check new evils. They have been most marked in regions 
where population and wealth have grown with unexampled 
speed, and in those where the extinction of slavery has 
changed the industrial basis of society. Here lies the expla- 
nation of the otherwise singular fact that several of the origi- 
nal States, such as Virginia and Georgia, have run through 
many constitutions. These whilom Slave States have not 
only changed greatly but changed suddenly : society, as well 
as political life, was dislocated by the Civil War, and has had 
to make more than one effort to set itself right. 

The total number of distinct constitutions adopted in 1776 
or enacted in the several States since that year — the States 



458 THE STATE GOVERNMENTS 



being then 13 and now 44 in number — is 113; and to these 

constitutions about 240 partial amendments have been at dif- 
ferent times adopted. 1 The period since 1860 shows a some- 
what greater frequency of change than the eighty-four years 
preceding ; but that may be accounted for by the effects of the 
war on the Southern States. The average duration of a con- 
stitution has been estimated at thirty years, and there are now 
six which have lasted more than sixty years. Both whole 
constitutions and particular amendments are frequently re- 
jected by the people when submitted to them at the polls. 
This befel six draft constitutions and more than twenty-eight 
amendments between 1877 and 1887. 2 

Putting all these facts together, and bearing in mind to how 
large an extent the constitutions now, whether wisely or fool- 
ishly, embody ordinary private and administrative law and 
therefore invite amendment, the American democracy seems 
less inclined to changefulness and inconstancy than either 
abstract considerations or the descriptions of previous writers, 
such as Tocqueville, would have led us to expect. The respect 
for these fundamental instruments would no doubt be greater 
if the changes in them were even fewer, and the changes 
would be fewer if the respect were greater ; but I see little 
reason to think that the evil is increasing. 

A few more observations on what the Constitutions disclose 
are needed to complete this brief sketch of the most instruc- 
tive sources for the history of popular government which our 
century has produced — documents whose clauses, while they 
attempt to solve the latest problems of democratic common- 
wealths, often recall the earliest efforts of our English fore- 
fathers to restrain the excesses of mediaeval tyranny. 

The Constitutions witness to a singular distrust by the peo- 
ple of its own agents and officers, not only of the legislatures 
but also of local authorities, as well rural as urban, whose 
powers of borrowing or undertaking public works are strictly 
limited. Even the judges are in sonic States restrained in 
their authority to commit for contempt of court, and three 

1 Owing to the absence of any general official record, I am at present (Nov. 
18U2) unable to ascertain the exact number. 

- Macpherson's Handbook mentions 26 constitutional amendments as 
adopted in the two years from August L888 to July 1890, and 26 as rejected. 



chap, xxxvm DEVELOPMENT OF CONSTITUTIONS 459 

very recent constitutions contain severe provisions against 
abuse of his veto and appointing power by the governor, and 
against bribery offered to or by him. 1 

They witness also to a jealousy of the Federal government. 
By most constitutions a Federal official is made incapable, not 
only of State office, but of being a member of a State legis- 
lature. These prohibitions are almost the only references to 
the National government to be found in the State constitutions, 
which so far as their terms go might belong to independent 
communities. They usually talk of corporations belonging to 
other States as " foreign," and sometimes try to impose special 
burdens on them. 

They show a wholesome anxiety to protect and safeguard 
private property in every way. The people's consciousness of 
sovereignty has not used the opportunity which the enact- 
ment of a constitution gives to override private rights : there 
is rather a desire to secure such rights from any encroach- 
ment by the legislature : witness the frequent provisions 
against the taking of property without due compensation, and 
against the passing of private or personal statutes which 
could unfairly affect individuals. The only exceptions to this 
rule are to be found in the case of anything approaching a 
monopoly, and in the case of wealthy corporations. But the 
" monopolist " is regarded as the enemy of the ordinary citi- 
zen, whom he oppresses; and the corporation — it is usually 
corporations that are monopolists — is deemed not a private 
person at all, but a sort of irresponsible tyrant whose resources 
enable him to overreach the law. Corporations are singled 
out for special taxation. Labour laws are enacted to apply 
to them only. A remarkable instance of this hostility to 
monopolies is to be found in the Constitution of Illinois of 
1870, with its provisions anent grain elevators, warehouses, 
and railroads. 2 The newer constitutions of other Western 
States, such as Wisconsin and Texas, are not less instructive 
in this respect. Nor is it surprising that efforts should be 
made in some of the more recent instruments to strike at the 
combinations called "trusts." 

1 Constitutions of North Dakota, South Dakota, and Wyoming, all of 1889. 

2 See the remarkable group of cases beginning with Munn v. Illinois (com- 
monly called the Granger Cases) in 94 U. S. Eeports, p. 113. 



400 THE STATE GOVERNMENTS part ii 

The extension of the sphere of State interference, with the 
corresponding departure from the doctrine of laissez faire, is a 
question so large and so interesting as to require a chapter to 
itself in my second volume. Here it may suffice to remark, 
that some departments of governmental action, which on the 
continent of Europe have long been handled by the State, are 
in America still left to private enterprise. For instance, the 
States neither own nor manage railways, or telegraphs, or 
mines, or forests, and they sell their public lands instead of 
working them. There is, nevertheless, visible in recent con- 
stitutions a strong tendency to extend the scope of public 
administrative activity. Most of the newer instruments estab- 
lish not only railroad commissions, intended to control the 
roads in the interest of the public, but also bureaux of agri- 
culture, labour offices, mining commissioners, land registration 
offices, dairy commissioners, insurance commissioners, and 
agricultural or mining colleges. And a reference to the stat- 
utes passed within the last few years in the Western States 
will show that more is being done in this direction by the 
legislatures, as exponents of popular sentiment, than could be 
gathered from the older among the Western constitutions. 

A spirit of humanity and tenderness for suffering, very 
characteristic of the American people, appears in the direc- 
tions which many constitutions contain for the establishment 
of charitable and reformatory institutions, and for legislation 
to protect children. 1 Sometimes the legislature is enjoined to 
provide that the prisons are made comfortable ; or directions 
are given that homes or farms be provided as asylums for 
the aged and unfortunate. 2 On the other hand, this tenderness 
is qualified by the judicious severity which in most States de- 
bars persons convicted of crime from the electoral franchise. 
Lotteries are stringently prohibited by some of the recent con- 
stitutions. 

In the older Northern constitutions, and in nearly all the 
more recent constitutions of all the States, ample provision is 
made for the creation and maintenance of schools. Even uni- 
versities are the object of popular zeal, though a zeal not 

1 So Kentucky (Const, of 1891, § 243) and North Dakota (Const, oi 
§ 209) prohibit the labour of children under twelve. 
- So Mississippi (Const, ol 1890, § 262). 



chap, xxxvin DEVELOPMENT OF CONSTITUTIONS 461 

always according to knowledge. Most Western constitutions 
direct their establishment and support from public funds or 
land grants. Some of the latest constitutions contain signifi- 
cant provisions intended to propitiate labour. Thus Wyoming 
and Idaho declare that eight hours shall be a lawful day's 
work on all State and municipal works, Wyoming adding " in 
all mines." Many prohibit the letting out of convict labour; 
several forbid the employment or bringing into the State of 
any body of armed men, and several prohibit contracts by 
which employers may attempt to escape from liability for 
accidents to their workpeople. Mississippi abolishes (1890), 
so far as concerns railroads, the established legal doctrine of 
an employer's non-liability for accidents caused to a workman 
by the fault of a fellow-workman. 

Although a Constitution is the fundamental and supreme 
law of the State, one must not conclude that its provisions are 
any better observed and enforced than those of an ordinary 
statute. There is sometimes reason to suspect that when an 
offence is thought worthy of being specially mentioned in a 
constitution, this happens because it is specially frequent, 
and because men fear that the legislature may shrink from ap- 
plying due severity to repress it, or the public prosecuting 
authorities may wink at it. 1 Certain it is that in many in- 
stances the penalties threatened by constitutions fail to attain 
their object. For instance, the constitutions of most of the 
Southern States have for many years past declared duellists, 
and even persons who abet a duel by carrying a challenge, 
incapable of office, or of sitting in the legislature. Yet the 
practice of private warfare does not seem to have declined 
in Mississippi, Texas, or Arkansas, where these provisions 
exist. Virginia had such a provision in her constitution of 
1830. She repeated it in her constitution of 1850, but with 
the addendum, that the disqualification should not attach to 
those who had offended previously — i.e. in violation of the 
constitution of 1830. 2 So far as the enactment has had any 

1 This is said to happen in some States as respects lotteries. 

2 " The General Assembly may provide that no person shall he capable of 
holding or being elected to any post of profit, trust, or emolument, civil or 
military, legislative, executive, or judicial, under the government of this com- 
monwealth who shall hereafter fight a duel, or send or accept a challenge to 
fight a duel, the probable issue of which may be the death of the challenger or 



402 THE STATE GOVERNMENTS iakt ir 

effect, that effect would seem to have been to encourage the prac- 
tice of shooting at sight, which is neither morally nor socially 
an improvement on duelling, though apparently exempt from 
these constitutional penalties. 

New York has been so much exercised on the subject of 
bribery and corruption, as to declare (amendments of 1874), 
not only that every member of the legislature and every officer 
shall take an oath that he has given nothing as a consideration 
for any vote received for him (amendment to Art. xii. § 1), 
and that the legislature shall pass laws excluding from the 
suffrage all persons convicted of bribery or of any infamous 
crime (amendment to Art. ii. § 2), but also (amendment to 
Art. xv. §§1 and 2) that the giving or offering to or receiving 
by an officer of any bribe shall be a felony. The recent consti- 
tutions of North Dakota, Montana, and Wyoming declare log- 
rolling to be bribery. South Dakota requires her legislators 
and officers to swear that they have not received and will not 
receive a free pass over a railroad for any vote or influence 
they may give, while Kentucky deprives of office (ipso f 
any legislative public officer or judge who accepts such a 
favour. And lobbying, which is openly practised in every 
building where a legislature meets, is declared by California 
to be a felony, and by Georgia to be a crime. 

challenged, or who shall be second to either party, or shall in any manner aid 
or assist in such duel, or shall be knowingly the bearer of Bnch challenge or 
acceptance; but no person shall be so disqualified by reason of his having 
heretofore fought such duel or sent or accepted such challenge, or been second 
in such duel, or bearer of such challenge or acceptance" (Constitution of 
1830, Art. iii. § 12, repeated in Constitution of 1850, Art. iv. § 17). In her 
Constitution of 1870 Virginia is not content with suggesting to the legislature 
to disqualify duellists, but does this directly by Art. iii. § :\. Seventeen Con- 
stitutions now declare duellists disqualified for office, and nine others add a 
disqualification for the franchise. Nearly all are Southern and Western 
States. Kentucky (Const, of 1891) requires all officers, members of the Gen- 
eral Assembly, and persons being admitted to the bar to take an oath that they 
have not fought a duel since the adoption of the Constitution, nor aided any 
person in so offending. 



CHAPTER XXXIX 

DIRECT LEGISLATION BY THE PEOPLE 

The difficulties and defects inherent in the method of legis- 
lating by a Constitution are obvious enough. Inasmuch as 
the people cannot be expected to distinguish carefully between 
what is and what is not proper for a fundamental instrument, 
there arises an inconvenient as well as unscientific mixture 
and confusion of private law and administrative regulation 
with the frame of government and the general doctrines of 
public law. This mixture, and the practice of placing in the 
Constitution directions to the legislature to legislate in a cer- 
tain sense, or for certain purposes, embarrass a legislature in 
its working by raising at every turn questions of its compe- 
tence to legislate, and of the agreement between its acts and 
the directions contained in the Constitution. And as the legis- 
lature is seldom either careful or well-advised, there follows in 
due course an abundant crop of questions as to the constitu- 
tionality of statutes, alleged by those whom they affect preju- 
dicially in any particular instance to be either in substance 
inconsistent with the Constitution, or such as the legislature 
was expressly forbidden by it to pass. These inconveniences 
are no doubt slighter in America than they would be in Europe, 
because the lawyers and the judges have had so much experi- 
ence in dealing with questions of constitutional conflict and 
ultra vires legislation that they now handle them with amaz- 
ing dexterity. Still, they are serious, and such as a well- 
ordered government ought to avoid. The habit of putting 
into the Constitution matters proper for an ordinary statute 
has the further disadvantage that it heightens the difficulty of 
correcting a mistake or supplying an omission. The process 
of amending a constitution even in one specific point is a slow 
one, to which neither the legislature, as the proposing author- 



464 THE STATE GOVERNMENTS part ii 

ity, nor the people, as the sanctioning authority, willingly 
resort. Hence blemishes remain and are tolerated, which a 
country possessing, like England, a sovereign legislature would 
correct in the next session of Parliament without trouble or 
delay. 

It is sometimes difficult to induce the people to take a 
proper interest in the amendment of the Constitution. In 
those States where a majority of all the qualified voters, and 
not merely of those voting, is required to affirm an amend- 
ment, it often happens that the requisite majority cannot be 
obtained owing to the small number who vote. 1 This has its 
good side, for it is a check on hasty or frequent change. But 
it adds greatly to the difficulty of working a rigid or supreme 
Constitution, that you may find an admitted, even if not very 
grave evil, to be practically irremovable, because the mass of 
the people cannot be induced to care enough about the matter 
to come to the polls, and there deliver their judgment upon it. 

These defects are so obvious that we may expect to find cor- 
respondingly strong grounds for the maintenance, and indeed 
the steady extension of the plan of legislating by and through 
a Constitution. What are these grounds ? Why do the 
Americans tend more and more to remove legislation from the 
legislature and entrust it to the people ? 

One could quite well imagine the several State governments 
working without fundamental instruments to control them. 
In a Federal government which rests on, or at least which 
began from, a compact between a number of originally sepa- 
rate communities, the advantages of having the relations of 
these communities to one another and to the central authority 
defined by an instrument placed beyond the reach of the ordi- 
nary legislature, and not susceptible of easy change, are clear 
and strong. Such an instrument is the guarantee for the 
rights of each member placed above the impulses of a chance 
majority. The case is quite different when we come to a 
single homogeneous community. Each American State might 
now, if it so pleased, conduct its own business, and govern its 
citizens as a commonwealth "at common law." with a sover- 
eign legislature, whose statutes formed the highest expression 
of popular will. Nor need it do so upon the cabinet system 

1 This happened more than onee of late years in Kentucky and Delaware. 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 465 

of the British, colonies. It might retain the separation from 
the legislature of the executive governor, elected by the peo- 
ple, and exercising his veto on their behalf, and yet dispense 
altogether with a rigid fundamental constitution, being con- 
tent to vest in its representatives and governor the plenitude 
of its own powers. This, however, no American State does, or 
has ever done, or is likely to do. And the question why it 
does not suggests a point of interest for Europeans as well as 
for Americans. 

In the republics of the ancient world, where representative 
assemblies were unknown, legislative power rested with the 
citizens meeting in what we should now call primary assem- 
blies, such as the Ecclesia of Syracuse or the Comitia of 
Rome. The same plan prevailed in the early Teutonic tribes, 
where the assembly of the freemen exercised all such powers 
as did not belong to the king. The laws of the kings of the 
Angles and Saxons, the capitularies of Charlemagne, were pro- 
mulgated in assemblies of the nation, and may be said, though 
emanating from the prince, to have been enacted by the peo- 
ple. During the middle ages, the assemblies died out, and the 
right of making laws passed either to the sovereign or to a 
representative assembly surrounding the sovereign such as the 
English Parliament, the older scheme surviving only in such 
primitive communities as some of the Swiss cantons, and the 
tiny republics of Andorra and San Marino. The first reap- 
pearance in modern Europe of the method of direct legislation 
by the people is, so far as I know, the provision of the Erench 
Constitution framed by the National Convention in 1793, which 
directs that any law proposed by the legislative body shall be 
published and sent to all the communes of the Republic, whose 
primary assemblies shall be convoked to vote upon it, in case 
objections to it have been raised by one-tenth of these primary 
assemblies in a majority of the departments. In recent times 
the plan has become familiar by its introduction, not only into 
most of the cantons of Switzerland, but into the Swiss Federal 
Republic, which constantly applies it, under the name of 
Referendum, by submitting to the vote of the people for ap- 
proval or rejection laws passed by the Eederal legislature. 1 

1 The Swiss Federal Constitution provides that any Federal law and Federal 
resolution of general application and not of an urgent character, must on the 
VOL. I 2 H 



466 THE STATE GOVERNMENTS part ii 

In Britain the influence of the same idea may be discovered 
in two phenomena of recent years. One is the proposal fre- 
quently made to refer to the direct vote of the inhabitants of 
a town or other local area the enactment of some ordinance 
affecting that district : as, for instance, one determining whether 
a rate shall be levied for a free library, or whether licences 
shall be granted for the sale, within the district, of intoxicating 
liquors. This method of deciding an issue, commonly known 
as Local Option, is a species of referendum. It differs from 
the Swiss form, not merely in being locally restricted, but 
rather in the fact that it is put to the people, not for the sake 
of confirming an Act of the legislature, but of deciding whether 
a certain general Act shall or shall not be operative in a given 
area. But the principle is the same ; it is a transference of legis- 
lative authority from a representative body, whether the par- 
liament of the nation or the parish vestry or municipal council 
of the town (as the case may be), to the voters at the polls. 

The other English illustration may seem far fetched, but on 
examination will be seen to involve the same idea. It is now 
beginning to be maintained as a constitutional doctrine, that 
when any large measure of change is carried through the 
House of Commons, the House of Lords has a right to reject 
it for the purpose of compelling a dissolution of Parliament, 
that is, an appeal to the voters. The doctrine is as warmly 
denied as it is asserted ; but the material point is that many 
educated men contend that the House of Commons is not 
morally, though of course it is legally, entitled to pass a bill 
seriously changing the Constitution, which was not submitted 
to the electors at the preceding general election. A general 
election, although in form a choice of particular persons as 
members, has now practically become an expression of popu- 
lar opinion on the two or three leading measures then pro- 
pounded and discussed by the party leaders, as well as a vote 
of confidence or no confidence in the Ministry of the day. 

demand of eight cantons or of 30,000 voters be submitted to popular vote for 
acceptance or rejection. This vote is frequently in the negative. See Swiss 
Federal Constitution, Art. 89; and the remarks of M. Kx -President Noma 

Droz in his Instruction civique, § lT'J. In some cantons the submission 

of laws to popular 70te is compulsory. In Geneva it is facultat\f. A refer- 
endum exists in every canton except Pribourg and the four which retain a 
Landesgemeinde. See S. Deplore. /.< Referendum en 6 1st . Brussels, 1892. 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 467 

It is in substance a vote upon those measures ; although, of 
course, a vote only on their general principles, and not, like 
the Swiss Referendum, upon the statute which the legislature 
has passed. Even therefore in a country which clings to and 
founds itself upon the absolute supremacy of its representative 
chamber, the notion of a direct appeal to the people has made 
progress. 1 

In the United States, which I need hardly say has in this 
matter been nowise affected by France or Switzerland or 
England, but has developed on its own lines, the conception 
that the people (i.e. the citizens at large) are and ought of 
right to be the supreme legislators, has taken the form of 
legislation by enacting or amending a Constitution. Instead 
of, like the Swiss, submitting ordinary laws to the voters after 
they have passed the legislature, the Americans take subjects 
which belong to ordinary legislation out of the category of 
statutes, place them in the Constitution, and then handle them 
as parts of this fundamental instrument. They are not called 
laws ; but laws they are to all intents and purposes, differing 
from statutes only in being enacted by an authority which is 
not a constant but an occasional body, called into action only 
when a Convention or a legislature lays propositions before it. 

I have already explained the historical origin of this system, 
how it sprang from the fact that the Constitutions of the 
colonies having been given to them by an external authority 
superior to the colonial legislature, the people of each State, 
seeing that they could no longer obtain changes in their 
Constitution from Britain, assumed to themselves the right 
and duty of remodelling it ; putting the collective citizendom 
of the State into the place of the British Crown as sovereign. 
The business of creating or remodelling an independent com- 
monwealth was to their thinking too great a matter to be left 
to the ordinary organs of State life. This feeling, which had 

1 Much importance has come to he attached in England to casual parlia- 
mentary elections occurring when any important measure is before Parliament, 
because such an election is taken to indicate the attitude of the people gener- 
ally towards the measure, and by consequence the judgment they would pro- 
nounce were a general election held. There have been instances in which a 
measure or part of a measure pending in Parliament has been dropped, because 
the result of the " by-election " was taken to indicate that it displeased the 
people. 



468 THE STATE GOVERNMENTS part ii 

begun to grow from 1776 onwards, was much strengthened by 
the manner in which the Federal Constitution was enacted in 
1788 by State conventions. It seemed to have thus received 
a specially solemn ratification; and even the Federal legis- 
lature, which henceforth was the centre of national politics, 
was placed far beneath the document which expressed the will 
of the people as a whole. 

As the republic went on working out both in theory and in 
practice those conceptions of democracy and popular sover- 
eignty which had been only vaguely apprehended when enun- 
ciated at the Revolution, the faith of the average man in 
himself became stronger, his love of equality greater, his 
desire, not only to rule, but to rule directly in his own proper 
person, more constant. These sentiments would have told still 
further upon State governments had they not found large 
scope in local government. However, even in State affairs 
they made it an article of faith that no Constitution could 
be enacted save by the direct vote of the citizens ; and they 
inclined the citizens to seize such chances as occurred of 
making laws for themselves in their own way. Concurrently 
with the growth of these tendencies there had been a decline 
in the quality of the State legislatures, and of the legislation 
which they turned out. They were regarded with less respect ; 
they inspired less confidence. Hence the people had the 
further excuse for superseding the legislature, that they might 
reasonably fear it would neglect or spoil the work they desired 
to see done. 

Instead of being stimulated by this distrust to mend their 
ways and recover their former powers, the State legislatures 
fell in with the tendency, and promoted their own superses- 
sion. The chief interest of their members, as will be explained 
later, is in the passing of special or local Acts, not of general 
public legislation. They are extremely timid, easily swayed by 
any active section of opinion, and afraid to stir when placed 
between the opposite fires of two such sections, as for instance, 
between the Prohibitionists and the liquor-sellers. Hence they 
welcomed the direct intervention of the people as relieving 
them of embarrassing problems. They began to refer to the 
decision of a popular vote matters clearly within their own 
proper competence, such as the question of liquor traffic, or the 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 469 

creation of a system of gratuitous schools. This happened as 
far back as thirty years ago. Presently they began to wash 
their hands by the same device of the troublesome and jealousy- 
provoking question where the capital of the State, or its lead- 
ing public institutions, should be " located." 1 In New York, 
the legislature having been long distracted and perplexed by 
the question whether articles made by convicts in the State 
prisons should be allowed to be sold, and so to compete with 
articles made by private manufacturers, recently resolved to 
invite the opinion of the multitude, and accordingly passed an 
Act under which the question was voted on over the whole 
State. They could not (except of course by proposing a con- 
stitutional amendment) enable the people to legislate on the 
point ; for it has been often held by American courts that the 
legislature, having received a delegated power of law-making, 
cannot delegate that power to any other person or body. 2 But 
they could ask the people to advise them how they should leg- 
islate ; and having obtained its view in this manner, could 
pass a statute in conformity with its wishes. 

The methods by which legislative power is directly vested in 
the American voters are two. One is the enactment or amend- 
ment by them of a Constitution. Here the likeness to the Swiss 
Referendum is close, because the law to be made is first drafted 
and passed by the convention or legislature (as the case may 
be) and then submitted to the people. How wide the scope of 
this method is will be realized by one who has followed the 
account already given of the number and variety of the topics 
dealt with by State Constitutions. 

The other method is the submission to popular vote, pursu- 
ant to the provisions of the Constitution, of a proposal or pro- 
posals therein specified. If such a proposal has been first 
passed by the legislature, we have here also an instance of a 
Eeferendum in the Swiss sense. If however the legislature 
have not given their decision on the proposal, but the popular 

1 This is now the general rule in new constitutions. Washington provides 
that though a hare majority may settle where the seat of State government 
shall he, a majority of two-thirds shall be required to change it. 

2 According to the maxim Delegata potestas non delegatur, a maxim which 
would not apply in England, because there Parliament has an origina and not 
a delegated authority. 

Judge Cooley says : " One of the settled maxims of constitutional law is that 



470 THE STATE GOVERNMENTS part ii 

vote at the polls takes, place in obedience to a direction in that 
behalf contained in the Constitution, this is not strictly a Be- 
ferendum, but a case of legislation by the people alone, as if 
the voters of the State were all gathered in one assembly. 

Of these two methods the former needs no further illustration. 
Examples of the second, in both its forms, abound in the more 
recent Constitutions. ^tSoTar back as 1843 we find Wisconsin 
referring it to the voters to decide whether or no banks shall be 
chartered. 1 Minnesota declares that a certain class of railway 
laws shall not take effect unless submitted to and ratified by a 
majority of the electors. And she provides, by a later amend- 
ment to her Constitution, that " the moneys belonging to the 
internal improvement land fund shall never be appropriated 
for any purpose till the enactment for that purpose shall have 
been approved by a majority of the electors of the State, voting 
at the annual general election following the passage of the 

the power conferred upon the legislature to make laws cannot he delegated by 
that department to any other hody or authority. Where the sovereign power 
of the State has located the authority, there it must remain ; and by the con- 
stitutional authority alone the laws must be made until the Constitution itself 
is changed. The power to whose judgment, wisdom, and patriotism, his high 
prerogative has been entrusted cannot relieve itself of the responsibility by 
choosing other agencies upon which the power shall be devolved" {ConstiU 
Limit., p. 141). He quotes from Locke (Civil Government, § 142) the remark 
that " The legislature neither must nor can transfer the power of making laws to 
anybody else, or place it anywhere but where the people have." This is one of 
Locke's " bounds set to the legislative power of every commonwealth in every 
form of government " ; but it has not precluded the British Parliament from 
delegating large, and in many cases truly legislative, powers to particular 
persons or authorities, such as the Crown in Council. 

There has been much difference of opinion among American courts as to the 
extent to which a legislature may refer the operation of a general law to popu- 
lar vote in a locality, but " the clear weight of authority is in support of legis- 
lation of the nature commonly known as local option laws." — Cooley, ui supra, 
p. 152 ; and see the cases collected in his notes. 

1 Constitution of 1843, Art. xi. § 5. — "The legislature may submit to the 
voters at any general election the question of ' Bank or no bank? ' and if at 
any such election a number of votes equal to a majority of all the votes cast at 
such election on that subject shall be in favour of banks, then the legislature 
shall have power to grant bank charters, or to puss a general banking law, 
with such restrictions and under such regulations as they may deem expedient 
for the protection of the bill-holders: Provided, that no such grant or law 
shall have any force or effect until the same shall have been submitted to a 
vote of the electors of the State at some general election, and been approved 
by a majority of the votes cast on that subject at such election." Here the 
question is to come twice before the people. See also the Constitutions of 
Iowa, Michigan, Illinois, Kansas. Ohio, and .Missouri. 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 471 

Act." 1 In this last instance the referendum goes the length of 
constituting the voters the ultimate financial authority for the 
State, withdrawing from the legislature what might seem the 
oldest and most essential of its functions. So in not a few States 
no debts beyond a certain specified amount may be contracted 
except in pursuance of a vote of the people : and in others the 
rate of taxation is limited to a certain ratio to the total valu- 
ation of the State, subject to a power to increase the same by 
popular vote. And in California no law changing the seat of J 
the State government is valid unless approved by the p 1 eople^-^ / 

It is not uncommon for proposals submitted by the legis- 
lature in the form of constitutional amendments to be rejected 
by the people. Thus in Indiana, Nebraska, Ohio, and Oregon, 
the legislature submitted amendments extending the suffrage 
to women, and the people in all four States refused the exten- 
sion. In Colorado, where the Constitution of 1876 had pro- 
vided for taking a special vote on the point, the legislature 
passed its woman franchise law, and laid it before the people 
in October 1877, when it was rejected by 14,000 votes to 7400. 
So West Virginia by her constitution of 1872, and South 
Dakota by hers of 1889, submitted proposals for proportional 
representation, which failed of acceptance. 

The same principle of popular vote has been widely applied 
to local as well as to State government. Many recent Consti- 
tutions provide that the approval of the people at the polls 
shall be needed in order to validate a decision of the city, or 
county, or school district, or township authority regarding bor- 
rowing, or taxing, or lending public funds to some enterprise 
it may be desired to assist. Licensing questions are usually 
left to popular determination alone, with no interference by 
the local representative authority : while as respects municipal 
government, California has taken the novel course of allowing 
cities of more than 10,000 inhabitants to make their own char- 
ters, by the action of a drafting board of fifteen freeholders 
and a ratifying vote of the people, the State legislature hav- 
ing only a veto on the charter en bloc. 2 

1 Amendments of 1871 and 1874 to the Constitution of 1857. 

2 Amendment of 1887 to the Constitution of California. Washington (Const, 
of 1889, Art. xi. § 12), adopting a similar provision, restricts it to cities with a 
population of 20,000 or over, hut drops the requirement of approval hy the 
State Legislature. See, for specimens of popular vote provisions for local 
areas, Appendix, note to Chapter XLTX. 



472 THE STATE GOVERNMENTS part ii 

What are the practical advantages of this plan of direct 
legislation by the people ? Its demerits are obvious. Besides 
those I have already stated, it tends to lower the authority and 
sense of responsibility in the legislature ; and it refers matters 
needing much elucidation by debate to the determination of 
those who cannot, on account of their numbers, meet together 
for discussion, and many of whom may have never thought 
about the matter. These considerations will to most Euro- 
peans appear decisive against it. The proper course, they will 
say, is to improve the legislatures. The less you trust them, 
the worse they will be. They may be ignorant; yet not so 
ignorant as the masses. 

But the improvement of the legislatures is just what the 
Americans despair of, or, as they prefer to say, have not 
time to attend to. Hence they fall back on the direct popular 
vote as the best course available under the circumstances of 
the case, and in such a world as the present. They do not 
claim that it has any great educative effect on the people. 
But they remark with truth that the mass of the people are 
equal in intelligence and character to the average State legis- 
lator, and are exposed to fewer temptations. The legislator 
can be " got at," the people cannot. The personal interest of 
the individual legislator in passing a measure for chartering 
banks or spending the internal improvement fund may be 
greater than his interest as one of the community in prevent- 
ing bad laws. It will be otherwise with the bulk of the 
citizens. The legislator may be subjected by the advocates of 
women's suffrage or liquor prohibition to a pressure irresistible 
by ordinary mortals ; but the citizens are too numerous to be 
all wheedled or threatened. Hence they can and do reject 
proposals which the legislature has assented to. Nor should it 
be forgotten that in a country where law depends for its force 
on the consent of the governed, it is eminently desirable that 
law should not outrun popular sentiment, but have the whole 
weight of the people's deliverance behind it. 1 

1 In the case of local option there is the further argument that to commit 
the question of licences to a local representative is virtually to make the elec- 
tion of that authority turn upon this single question, and thai there is an ad- 
vantage in making a restriction on the freedom o( the individual issue directly 
troin the vote of the people, who may feel themselves douhly hound to enforce 
what they have directly enacted. 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 473 

A brilliant, though severe, critic of Canadian institutions 1 
deplores the want of some similar arrangement in the several 
Provinces of the Dominion. Having remarked that the veto 
of the lieutenant-governor on the Acts of a Provincial legis- 
lature is in practice a nullity, and that the central government 
never vetoes such Acts except where they are held to exceed 
the constitutional competence of the legislature, he urges that 
what is needed to cure the faults of Provincial legislation is 
to borrow the American plan of submitting constitutional 
amendments (and, he might add, laws) to popular vote. " The 
people cannot be lobbied, wheedled, or bull-dozed ; the people 
is not in fear of its re-election if it throws out something 
supported by the Irish, the Prohibitionist, the Catholic, or the 
Methodist vote." 

If the practice of recasting or amending State Constitutions 
were to grow common, one of the advantages of direct legis- 
lation by the people would disappear, for the sense of per- 
manence would be gone, and the same mutability which is 
now possible in ordinary statutes would become possible in the 
provisions of the fundamental law. But this fault of small 
democracies, 2 especially when ruled by primary assemblies, is 
unlikely to recur in large democracies, such as most States have 
now become, nor does it seem to be on the increase among 
them. Reference to the people, therefore, acts as a conserva- 
tive force ; that is to say, it is a conservative method as com- 
pared with action by the legislature. 

In England, and indeed in most European countries, repre- 
sentative government has been hitherto an institution with 
markedly conservative elements, because the legislating repre- 
sentatives have generally belonged to the wealthy or well-born 
and educated classes, who, having something to lose by change, 
are disinclined to it, who have been looked up to by the masses, 
and who have been imperfectly responsive to popular impulses. 
American legislatures have none of these features. The men 
are not superior to the multitude, partly because the multitude 

i Mr. Goldwin Smith. 

2 So frequent a charge against the Greek republics and the Italian republics 
of the middle ages, as Dante says, apostrophizing Florence — 

' ' Ch' a mezzo No vembre, 
Non giunge quel che tu d' Ottobre fili." 



474 THE STATE GOVERNMENTS 



is tolerably educated and tolerably well off. The multitude 
does not defer to them. They are horribly afraid of it, and 
indeed of any noisy section in it. They live in the breath of 
its favour; they hasten to fulfil its behests almost before they 
are uttered. Accordingly an impulse or passion dominant 
among the citizens tells at once on the legislature, and finds 
expression in a law, the only check being, not the caution of that 
body and its willingness to debate at length, but the incapacity 
it often shows to embody in a practical form the wishes mani- 
fested by the people. Hence in the American States repre- 
sentative government has by no means that conservative 
quality which Europeans ascribe to it, whereas the direct vote 
of the people is the vote of men who are generally better in- 
structed than the European masses, more experienced in poli- 
tics, more sensible of their interest in the stability of the 
country. If, therefore, we regard the referendum in its effect 
upon the State legislature, we shall regard it as being rather a 
bit and bridle than a spur. 

This method of legislation by means of a Constitution or 
amendments thereto, arising from sentiments and under con- 
ditions in many respects similar to those which have produced 
the referendum in Switzerland, is an interesting illustration of 
the tendency of institutions, like streams, to wear their channels 
deeper. A historical accident, so to speak, suggested to the 
Americans the subjection of their legislatures to a funda- 
mental law, and the invention has been used for other purposes 
far more extensively than its creators foresaw. It is now, more- 
over, serviceable in a way which those who first used it did not 
contemplate, though they are well pleased with the result. It 
acts as a restraint not only on the vices and follies of legisla- 
tors, but on the people themselves. Having solemnly bound 
themselves by their Constitution to certain rules and principles. 
the people come to respect those principles. They have 
parted with powers which they might be tempted in a moment 
of excitement, or under the pressure of suffering, to abuse 
through their too pliant representatives; and although they 
can resume these powers by enacting a new Constitution or 
amending the old one, the process of resumption requires time, 
and involves steps which secure care and deliberation, while 
allowing passion to cool, and the prospect of a natural relief 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 475 

from economic evils to appear. It has been well observed by 
Dr. von Hoist 1 that the completeness and consistency with 
which the principle of direct sovereignty of the whole people 
is carried ont in America has checked revolntionary tendencies, 
by pointing out a peaceful and legal method for the effecting 
of political or economical changes, and has fostered that dispo- 
sition to respect the decision of the majority which is essential 
to the success of popular governments. 

State Constitutions, considered as laws drafted by a Con- 
vention and enacted by the people at large, are better both in 
form and substance than laws made by the legislature, because 
they are the work of abler, or at any rate of honester, men, 
acting under a special commission which imposes special re- 
sponsibilities on them. The appointment of a Constitutional 
Convention excites general interest in a State. Its functions 
are weighty, far transcending those of the regular legislature. 
Hence some of the best men in the State desire a seat in it, 
and, in particular, eminent lawyers become candidates, know- 
ing how much it will affect the law they practise. It is there- 
fore a body superior in composition to either the Senate or the 
House of a State. Its proceedings are followed with closer 
attention ; and it is exempt from the temptations with which 
the power of disposing of public funds bestrews the path of 
ordinary legislators ; its debates are more instructive ; its con- 
clusions are more carefully weighed, because they cannot be 
readily reversed. 2 Or if the work of altering the constitution 
is carried out by a series of amendments, these are likely to be 
more fully considered by the legislature than ordinary statutes 
would be, and to be framed with more regard to clearness and 
precision. 3 

In the interval between the settlement by the convention of 
its draft constitution, or by the legislature of its draft amend- 

1 Constitutional Law of the United States, § 90. 

2 Where it is desired not to complicate the acceptance or rejection of a 
draft constitution with the enactment of some particular provision, that pro- 
vision is separately submitted to the people ; if they approve it, it is inserted 
in the constitution. 

3 There is much controversy in America as to whether the better method of 
reforming a constitution be to recast it by a convention or remove particular 
blemishes by a series of amendments. Probably the one plan or the other is 
to be preferred, according to the condition of public sentiment and the likeli- 
hood of securing a strong convention. 



476 THE STATE GOVERNMENTS part ii 

ments, and the putting of the matter to the vote of the people, 
there is copious discussion in the press and at public meetings, 
so that the citizens often go well prepared to the polls. An 
all-pervading press does the work which speeches did in the 
ancient republics, and the fact that constitutions and amend- 
ments so submitted are frequently rejected, shows that the peo- 
ple, whether they act wisely or not, do not at any rate surrender 
themselves blindly to the judgment of a convention, or obedi- 
ently adopt the proposals of a legislature. 

These merits are indeed not always claimable for conventions 
and their remodelled constitutions, much less for individual 
amendments. The Constitution of California of 1879 (whereof 
more in a later chapter) is a striking instance to the contrary; 
nor have the recent Conventions even of such old States as 
Mississippi and Kentucky shewn all the judgment that the 
problems before them required. But a general survey of this 
branch of our inquiry leads to the conclusion that the peoples 
of the several States, in the exercise of this their highest func- 
tion, show little of that haste, that recklessness, that love of 
change for the sake of change, with which European theorists, 
both ancient and modern, have been wont to credit democracy ; 
and that the method of direct legislation by the citizens, liable 
as it doubtless is to abuse, causes, in the present condition of 
the States, fewer evils than it prevents. 

It would doubtless be better, if good legislatures were attain- 
able, to leave the enactment of what are really mere statutes 
to the legislature, instead of putting them in a Constitution. 
But if good legislatures are unattainable, if it is impossible to 
raise the Senate and the House of each State above that low 
level at which (as we shall presently see) they now stand, 
then the system of direct popular action may be justified as a 
salutary effort of the forces which make for good government, 
opening for themselves a new channel. 



CHAPTER XL 

STATE GOVERNMENTS I THE LEGISLATURE 

The similarity of the frame of government in the forty-fonr 
republics which make up the United States, a similarity which 
appears the more remarkable when we remember that each of 
these republics is independent and self-determined as respects 
its frame of government, is due to the common source whence 
the governments flow. They are all copies, some immediate, 
some mediate, of ancient English institutions, viz. chartered self- 
governing corporations, which, under the influence of English 
habits, and with the precedent of the English parliamentary 
system before their eyes, developed into governments resem- 
bling that of England in the eighteenth century. Each of the 
thirteen colonies had up to 1776 been regulated by a charter 
from the British Crown, which, according to the best and oldest 
of all English traditions, allowed it the practical management 
of its own affairs. The charter contained a sort of skeleton 
constitution, which usage had clothed with nerves, muscles, and 
sinews, till it became a complete working system of free govern- 
ment. There was in each a governor, in two colonies chosen 
by the people, 1 in the rest nominated by the crown or the " pro- 
prietor"; there was a legislature; there were executive officers 
acting under the governor's commission and judges nominated 
by him ; there were local self-governing communities. In none, 
however, did there exist what we call cabinet government, i.e. 
the rule of the legislature through a committee of its own 
members, coupled with the irresponsibility of the permanent 
nominal head of the executive. This separation of the execu- 

1 However, in Rhode Island the governor was chosen, not as now hy the 
people at large, hut by the Company assembled in general court, a body which 
passed into the legislature of the colony. See Charter of Rhode Island, 1663. 
In Connecticut the general court chose if the people failed to elect, or a sudden 
vacancy occurred. 

477 



478 THE STATE GOVERNMENTS part ii 

tive from the legislature, which naturally arose from the fact 
that the governor was an officer directly responsible to another 
power than the colonial legislature, viz. the British Crown, his 
own master to whom he stood or fell, 1 distinguishes the old 
colonial governments of North America from those of the 
British colonies of the present day, in all of which cabinet 
government prevails. 2 The latter are copies of the present 
Constitution of England ; the former resembled it as it existed 
in the seventeenth and beginning of the eighteenth century 
before cabinet government had grown up. 

When the thirteen colonies became sovereign States at the 
Revolution, they preserved this frame of government, substi- 
tuting a governor chosen by the State for one appointed by the 
Crown. As the new States admitted to the Union after 1789 
successively formed their constitutions prior to their admission 
to the Union, each adopted the same scheme, its people imitat- 
ing, as was natural, the older commonwealths whence they 
came, and whose working they understood and admired. 3 They 
were the more inclined to do so because they found in the older 
constitutions that sharp separation of the executive, legisla- 
tive, and judicial powers which the political philosophy of those 
days taught them to regard as essential to a free government, 
and they all take this separation as their point of departure. 

I have observed in an earlier chapter that the influence on 
the framers of the Federal Constitution of the examples of free 
government which the} 7 found in their several States, had been 
profound. We may sketch out a sort of genealogy of Govern- 
ments as follows : — 

First. The English incorporated Company, a self-governing 
body, with its governor, deputy-governor, and assistants chosen 
by the freemen of the company, and meeting in what is called 
the General Court or Assembly. 

1 Even in Connecticut and Rhode Island the governor, though chosen by the 
colony, was in a sense responsible to the Crown. 

2 Of course in the British self-governing colonies the governor is still re- 
sponsible to the Ciown, hut this responsibility is confined within narrow limits 
by the responsibility ^( his ministers to the colonial legislature ami by the wide 
powers of thai Legislature. 

8 Massachusetts worked for s>\eral years with a small council as the execu- 
tive power representing the former Crows governor, but in 1780 she came hack 

to the plan of a single governor, while retaining, as she still retains, a council 
surrounding him. 



chap, xl STATE LEGISLATURES 479 

Next. The Colonial Government, which, out of this Company 
evolves a governor or executive head and a legislature, consist- 
ing of representatives chosen by the citizens and meeting in 
one or two chambers. 

Thirdly. The State Government, which is nothing but the 
colonial government developed and somewhat democratized, 
with a governor chosen originally by the legislature, now 
always by the people at large, and now in all cases with a leg- 
islature of two chambers. From the original thirteen States 
this form has spread over the Union and prevails in every State. 

Lastly. The Federal Government, modelled after the State 
Governments, with its President chosen, through electors, by 
the people, its two-chambered legislature, its judges named by 
the President. 1 

Out of such small beginnings have great things grown. 

It would be endless to describe the minor differences in the 
systems of the forty-four States. I will sketch the outlines 
only, which, as already observed, are in the main the same 
everywhere. 

Every State has — 

An executive elective head, the governor. 

A number of other administrative officers. 

A legislature of two houses. 

A system of courts of justice. 

Various subordinate local self-governing communities, coun- 
ties, cities, townships, villages, school districts. 

The governor and the other chief officials are not now chosen 
by the legislature, as was the case under most of the older 
State Constitutions, but by the people. They are as far as 
possible disjoined from the legislature. Neither the governor 
nor any other State official can sit in a State legislature. 2 He 
cannot lead it. It cannot, except of course by passing statutes, 
restrain him. There can therefore be no question of any gov- 

1 One might add another generation at the beginning of this genealogy by- 
deriving the English corporate company from the Roman collegia, and a gen- 
eration at the end by observing how much the constitution of modern Switzer- 
land owes to that of the United States. 

2 In Rhode Island, however, the lieutenant-governor is a member of the 
Senate, the governor presiding, but with only a casting vote. When the gov- 
ernor is absent, the lieutenant-governor presides, and has a casting vote besides 
his own vote as senator. 



480 THE STATE GOVERNMENTS part n 

eminent by ministers who link the executive to the legislature 
according to the system of the free countries of modern Europe 
and of the British colonies. 

Of these several powers it is best to begin by describing the 
legislature, because it is by far the strongest and most promi- 
nent. 

An American State legislature always consists of two houses, 
the smaller called the Senate, the larger usually called the 
House of Representatives, though in six States it is entitled 
"The Assembly," and in three "The House of Delegates." 
The origin of this very interesting feature is to be sought 
rather in history than in theory. It is due partly to the fact 
that in some colonies there had existed a small governor's 
council in addition to the popular representative body, partly 
to a natural disposition to imitate the mother country with its 
Lords and Commons, a disposition which manifested itself 
both in colonial days and when the revolting States were giv- 
ing themselves new Constitutions, for up to 1776 some of the 
colonies had gone on with a legislature of one house only. 
Now, however, the need for two chambers is deemed an axiom 
of political science, being based on the belief that the innate 
tendency of an assembly to become hasty, tyrannical, and cor- 
rupt, needs to be checked by the co-existence of another house 
of equal authority. The Americans restrain their legislatures 
by dividing them, just as the Romans restrained their execu- 
tive by substituting two consuls for one king. The only States 
that ever tried to do with a single house were Pennsylvania, 
Georgia, and Vermont, all of whom gave it up : the first after 
four years' experience, the second after twelve years, the last 
after fifty years. 1 It is with these trifling exceptions the quod 

1 Upon this subject of the division of the legislature, see Knit's Commen- 
taries, i. 208-210; and Story's Commentaries on (he American Constitution. 
§§ 548-670. It deserves to be remarked that the Pennsylvania Constitution of 
178(5, the Georgian Constitution of 1777, and the Vermonl Constitutions of 1786 
and 17it-">, all of which constituted one house of legislature only, provided for a 
second body called the Executive Council, which in Georgia had the duty of 
examining hills sent to it by th<> House o( Assembly, and of remonstrating 
against any provisions they disapproved, and in Vermont was empowered to 

Submit to the Assembly amendments to hills sent up to them hy the latter, 
and in case the Assembly did not accept such amendments, to suspend the 
passing of the 1 > i 1 1 till the next session of the legislature. In 17S9, Georgia 

abolished her Council, and divided her legislature into two houses; lVnnsyl- 



chap, xl STATE LEGISLATURES 481 

semper, quod ubique, quod ab omnibus of American constitutional 
doctrine. 1 

Both houses are chosen by popular vote, generally 2 in equal 
electoral districts, and by the same voters, although in a few 
States there are minor variations as to modes of choice. 3 Illi- 
nois by her Constitution of 1870, and Michigan by a statute of 
1889, create a system of proportional representation by means 
of the cumulative vote; i.e. the elector may cast as many votes 
for any one candidate as there are representatives to be elected 
in the district, or may distribute his votes among the candi- 
dates. The plan seems to give satisfaction in Illinois, where the 
northern counties (called Canaan) have usually had a Eepubli- 
can, the southern (called Egypt) a Democratic, majority, so 
that there were special reasons for breaking the party solidity 
of each section. 

vania did the same in 1790 ; Vermont in 1836. Both Pennsylvania and Vermont 
had also a body called the Council of Censors, who may be compared with the 
Nomothetre of Athens, elected every seven years, and charged with the duty 
of examining the laws of the State and their execution, and of suggesting 
amendments. This body was abolished in Pennsylvania in 1790, but lasted on 
in Vermont till 1870. All these experiments well deserve the study of consti- 
tutional historians. 

1 It ought to be noted as an illustration of the divergences between coun- 
tries both highly democratic that in the cantons of Switzerland the legislatures 
consist of one chamber only. In most of these cantons there is, to be sure, a 
referendum and a small executive council. Another remarkable divergence 
is that whereas in America, and especially in the West, the tendency is towards 
" rotation" in office, in Switzerland an official and a member of a legislature 
is usually continued in his post from one term to another, in fact is seldom 
displaced except for some positive fault. At one time officials were steadily 
re-elected in Connecticut. 

2 In Connecticut, every town which had two members in 1874 still returns 
two, whatever its size, and new towns obtain two members when they reach 
5000. Thus 42,000 voters have 133 members in the House, and 92,000 only 117 
members; a great many very small places having each two members. The 
State is virtually governed by the representatives of " rotten boroughs," and 
as they form the majority, they have hitherto refused to submit to the people 
a constitutional amendment for a redistribution of seats on the basis of equal 
population. The recent troubles in the State are partly due to this excessive 
difficulty in reforming an antiquated Constitution. In some States there has 
been audacious gerrymandering. The Supreme court of Wisconsin recently 
declared inconsistent with the Constitution a redistricting of the State which 
had neglected county boundaries and created very unequal districts. 

3 For instance, in Rhode Island every town or city, be it great or small, 
returns one senator ; and thus it lately befel that a population of 253,000 in 13 
cities and towns had 13 senators, while 23 towns with 20,000 people sent 23 
senators. In Illinois, every district returns one senator and three representa- 
tives. 

VOL. I 2 1, 



482 THE STATE GOVERNMENTS part ii 

The following differences between the rules governing the 
two Houses are general : — 

1. The senatorial electoral districts are always larger, 
usually twice or thrice as large as the House districts, and the 
number of senators is, of course, in the same proportion smaller 
than that of representatives. 

2. A senator is usually chosen for a longer term than a repre- 
sentative. In twenty-eight States he sits for four years, in 
one (New Jersey) for three, in thirteen for two, in two 
(Massachusetts and Rhode Island) for one year only ; the 
usual term of a representative being two years. 

3. In most cases the Senate, instead of being elected all at 
once like the House, is only partially renewed, half its members 
going out when their two, or four, years have been completed, 
and a new half coming in. This gives it a sense of continuity 
which the House wants. 

4. In some States the age at which a man is eligible for the 
Senate is fixed higher than that for the House of Representa- 
tives ; and in one (Delaware) he must own freehold land of 
200 acres or real or personal estate of the value of £1000 
(Const, of 1792, repeated in Const, of 1831). Other restric- 
tions on eligibility, such as the exclusion of clergymen (which 
still exists in six States, and is of old standing), that of sala- 
ried public officials (which exists everywhere), that of United 
States officials and members of Congress, and that of persons 
not resident in the electoral district (frequent by law and 
practically universal by custom), apply to both Houses. In 
some States this last restriction goes so far that a member 
ceasing to reside in the district for which he was elected loses 
his seat ipso facto. 

I have dwelt in an earlier chapter (Chap. XIV.) on the 
strength of this local feeling as regards congressional elections, 
and on the results, to a European eye mostly unfortunate, which 
it produces. It is certainly no weaker in State elections. 
Nobody dreams of offering himself as a candidate for a place 
in which he does not reside, even in new States, where it might 
be thought that there had not been lime lor local feeling to 
spring up. Hence the educated ami leisured residents of the 
greater cities have no chance oi entering the State legislature 

except for the city district wherein they dwell; and as these 



chap, xl STATE LEGISLATURES 483 

city districts are those most likely to be in the hands of some 
noxious and selfish ring of professional politicians, the prospect 
for such an aspirant is a dark one. Nothing more contributes 
to make reform difficult than the inveterate habit of choosing 
residents only as members. Suppose an able and public- 
spirited man desiring to enter the Assembly or the Senate of 
his State and shame the offenders who are degrading or plun- 
dering it. He may be wholly unable to find a seat, because in 
his place of residence the party opposed to his own may hold 
a permanent majority, and he will not be even considered else- 
where. Suppose a group of earnest men who, knowing how 
little one man can effect, desire to enter the legislature at the 
same time and work together. Such a group can hardly arise 
except in or near a great city. It cannot effect an entrance, 
because the city has at best very few seats to be seized, and 
the city men cannot offer themselves in any other part of the 
State. That the restriction often rests on custom, not on law, 
makes the case more serious. A law can be repealed, but cus- 
tom has to be unlearned ; the one may be done in a moment 
of happjr impulse, the other needs the teaching of long experi- 
ence applied to receptive minds. 

The fact is, that the Americans have ignored in all their 
legislative as in many of their administrative arrangements, 
the differences of capacity between man and man. They 
underrate the difficulties of government and overrate the ca- 
pacities of the man of common sense. Great are the bless- 
ings of equality ; but what follies are committed in its 



name 



The unfortunate results of this local sentiment have been 
aggravated by the tendency to narrow the election areas, allot- 
ting one senator or representative to each district. Under the 
older Constitution of Connecticut, for instance, the twelve 
senators were elected out of the whole State by a popular 
vote. Now (Amdts. of a.d. 1828) the twenty-four senators 
are chosen by districts, and the Senate is to-day an inferior 
body, because then the best men of the whole State might be 
chosen, now it is possible only to get the leading men of the 
districts. In Massachusetts, under the Constitution of 1780, the 
senators were chosen by districts, but a district might return 
as many as six senators : the Assembly men were chosen by 



484 THE STATE GOVERNMENTS part ii 

towns, 1 each, corporate town having at least one representative, 
and more in proportion to its population, the proportion being 
at the rate of one additional member for every 275 ratable polls. 
In 1836 the scale of population to representatives was raised, 
and a plan prescribed (too complicated to be here set forth) 
under which towns below the population entitling them to one 
representative, should have a representative during a certain 
number of years out of every ten years, the census being 
taken decennially. Thus a small town might send a member 
to the Assembly for five years out of every ten, choosing 
alternate years, or the first five, or the last five, as it pleased. 
Now, however (Amdts. of a.d. 1857), the State has been divided 
into forty Senatorial districts, each of which returns one sena- 
tor only, and in 175 Assembly districts, returning, one, two, 
or, in a few cases, three representatives each. The composition 
of the legislature has declined ever since this change was 
made. The area of choice being smaller, inferior men are 
chosen ; and in the case of the Assembly districts which re- 
turn one member, but are composed of several small towns, the 
practice has grown up of giving each town its turn, so that not 
even the leading man of the district, but the leading man of 
the particular small community whose turn has come round, 
is chosen to sit in the Assembly. 

Universal manhood suffrage, subject to certain disqualifica- 
tions in respect of crime (including bribery and polygamy) 
and of the receipt of poor law relief, which prevail in many 
States — in eight States no pauper can vote — is the rule in 
nearly all the States. One State (Wyoming, admitted in 1890) 
gives the suffrage to women. A property qualification was 
formerly required in many, and lasted till 1888 in Rhode 
Island, where the possession of real estate valued at $134, or 
the payment of a tax of at least SI was required from all 
citizens not natives of tin 1 United Slates.- Five other States 
(Delaware, .Massachusetts, Pennsylvania, Tennessee, and Bfis- 

1 A town or township means in New England, and indeed generally in the 

United States, a small rural district, as opposed to a city. It is a community 

which has not received representative municipal government. — See Chapter 
XLVm.poat. 

2 Rhode Island, however, retains a qualification for the purposes of voting 

for certain financial officers. A ^om\ many constitutions forbid the imposi- 
tion of any property qualification. 



chap, xl STATE LEGISLATURES 485 

sissippi) require the voter to have paid some State or county 
tax (Massachusetts and Tennessee call it a poll tax) ; but if 
he does not pay it, his party usually pay it for him, so the 
restriction is of little practical importance. Massachusetts also 
requires that he shall be able to read the State Constitution in 
English, and to write his name (Amdt. of 1857), Connecticut, 
that he shall be able to read any section of the Constitution or 
of the statutes, and shall sustain a good moral character (Amdts. 
of 1855 and 1845). This educational test is of no great conse- 
quence, partly, no doubt, because illiteracy is not high in 
either State ; and under the new ballot laws it will scarcely 
be needed. In Massachusetts it has latterly been pretty well 
enforced, but for a while the party managers on both sides 
agreed not to trouble voters about it. Mississippi prescribes 
that the person applying to be registered " shall be able to read 
any section of the Constitution or be able to understand the 
same when read to him, or give a reasonable interpretation 
thereof" (Const, of 1890). x Certain terms of residence within 
the United States, in the particular State, and in the voting 
districts, are also required: these vary greatly from State to 
State, but are usually short. 

The suffrage is generally the same for other purposes as for 
that of elections to the legislature, and is in most States con- 
fined to male inhabitants. In a few States women are per- 
mitted to vote at school district and in one (Kansas) at mu- 
nicipal elections, 2 and in these no disability has been imposed 

1 The reasonable interpretation of this remarkable provision seems to be 
that it is intended to furnish a peaceful method of excluding illiterate negroes 
and including illiterate whites : a result which has been in fact attained, and 
which, though it may appear at variance with the spirit of the fifteenth amend- 
ment to the Federal Constitution, is under the circumstances of Mississippi 
possibly not the worst solution of a difficult problem. 

The Constitution of Colorado, 1876, allows its legislature to prescribe an 
educational qualification for electors, but no such law is to take effect prior to 
a.d. 1890. Florida by its Constitution of 1868 directed its legislature to pre- 
scribe such qualifications, which, however, were not to apply till after 1880, nor 
to any person who might then be already a voter. (In the Constitution of 1886 
I find no such provision.) On the other hand, the Constitution of Alabama 
forbids any educational qualification to be imposed. It is curious, yet easily 
explicable, that one of the least educated States should prohibit what two of 
the best educated States expressly prescribe. The safeguard is applied where 
it is least, and forbidden where it is most, needed. In Alabama it would have 
excluded most of the negroes and many of the poor whites. 

2 Minnesota and Colorado, as well as the Dakotas and Montana, give the school 



486 THE STATE GOVERNMENTS part ii 

upon married women ; nor has it been attempted, in the various 
constitutional amendments framed to give political suffrage to 
women, but hitherto always (except in Wyoming) rejected by 
the people, to draw such a distinction, which would indeed be 
abhorrent to the genius of American law. 

It is important to remember that, by the Constitution of the 
United States, the right of suffrage in Federal or national elec- 
tions (i.e. for presidential electors and members of Congress) 
is in each State that which the State confers on those who vote 
at the election of its more numerous House. That the differ- 
ences which might exist between one State and another in the 
width of the Federal franchise thus granted, are at present 
insignificant is due, partly to the prevalence of democratic 
theories of equality over the whole Union, partly to the provi- 
sion of the fourteenth amendment to the Federal Constitution, 
which reduces the representation of a State in the Federal 
House of Eepresentatives, and therewith also its weight in a 
presidential election, in proportion to the number of adult male 
citizens disqualified in that State. As a State desires to have 
its full weight in national politics, it has a strong motive for 
the widest possible enlargement of its Federal franchise, and 
this implies a corresponding width in its domestic franchise. 

The number of members of the legislature varies greatly from 
State to State. Delaware, with nine senators, has the smallest 
Senate, Illinois, with fifty-one, the largest. Delaware has also 
the smallest House of Representatives, consisting of twenty-one 
members ; while New Hampshire, a very small State, has the 
largest with 321. The New York houses number 32 and 128 
respectively, those of Pennsylvania 50 and 201, those of Massa- 
chusetts 40 and 240. In the Western and Southern States the 
number of representatives rarely exceeds 120. 1 

As there is a reason for everything in the world, if one could 
but find it out, so for this difference between the old New 
England States and those newer States which in many other 

vote to women by their Constitutions ; Massachusetts has granted it by statute; 
Washington permits the legislature to gram it ; Idaho grants it provisionally, 
permitting the legislature to withdraw it. .Montana confers what may he called 

the tax-payers' re/< rendum or direct popular vote on women possessing the like 
qualifications with men ( Art. ix. § 12). 

1 North Dakota, however, provides that its Senate may have as many as 
50, its House as many as 140 members. 



chap, xl STATE LEGISLATURES 487 

points have followed their precedents. In the New England 
States local feeling was and is intensely strong, and every little 
town wanted to have its member. In the West and South, 
local divisions have had less natural life; in fact, they are 
artificial divisions rather than genuine communities that arose 
spontaneously. Hence the same reason did not exist in the 
West and South for having a large Assembly; while the dis- 
trust of representatives, the desire to have as few of them as 
possible and pay them as little as possible, have been specially 
strong motives in the West and South, as also in New York 
and Pennsylvania, and have caused a restriction of numbers. 

In all States the members of both Houses receive the same 
salary. In some cases it is fixed at an annual sum of from 
$150 (Maine) to $1500 (New York), the average being $500 
(£100). More frequently, however, it is calculated at so 
much for every day during which the session lasts, varying 
from $1 (in Rhode Island) to $8 (in California and Nevada) 
per day (4s. 2d. to £1: 13: 4), ($5 seems to be the average), 
besides a small allowance, called mileage, for travelling ex- 
penses. These sums, "although unremunerative to a man who 
leaves a thriving business to attend in the State capital, are an 
object of such desire to many of the representatives of the 
people, that the latter have thought it prudent to restrict the 
length of the legislative sessions, which now stand generally 
limited to a fixed number of days, varying from forty days in 
Georgia, Nebraska, and Oregon, to 150 days in Pennsylvania. 
The States which pay by the day are also those which limit 
the session. Some States secure themselves against prolonged 
sessions by providing that the daily pay shall diminish, or 
shall absolutely cease and determine, at the expiry of a certain 
number of days, hoping thereby to expedite business and 
check inordinate zeal for legislation. 1 

It was formerly usual for the legislature to meet annually, 
but the experience of bad legislation and over legislation has 
led to fewer as well as shorter sittings ; and sessions are now 
biennial in all States but the five following : — Massachusetts, 
Rhode Island, New York, New Jersey, South Carolina, all of 

1 These limitations on payment are sometimes, where statutory, repealed for 
the occasion. In the Swiss Federal Assembly a member receives pay (16s. 
per diem) only for those days on which he answers to his name on the roll call. 



488 THE STATE GOVERNMENTS part 11 

them old States. In these the sessions are annual, save in that 
odd little nook Rhode Island, which still convokes her legisla- 
ture every May at Newport, and afterwards holds an adjourned 
session at Providence, the other chief city of the common- 
wealth. There is, however, in nearly all States a power 
reserved to the governor to summon the Houses in extraordi- 
nary session should a pressing occasion arise, but the provisions 
for daily pay do not usually apply to these extra sessions. 1 

Bills may originate in either House, save that in twenty-one 
States money bills must originate in the House of Representa- 
tives, a rule for which, in the present condition of things, when 
both Houses are equally directly representative of the people 
and chosen by the same electors, no sufficient ground appears. 
It is a curious instance of the wish which animated the frame rs 
of the first Constitutions of the original thirteen States to repro- 
duce those details of the English Constitution which had been 
deemed bulwarks of liberty. The newer States borrowed it 
from their elder sisters, and the existence of a similar provi- 
sion in the Federal Constitution has helped to perpetuate it in 
all the States. But there is a reason for it in Congress, the 
Federal Senate not being directly representative of equal num- 
bers of citizens, which is not found in the State legislatures : 
it is in these last a mere survival of no present functional 
value. Money bills may, however, be amended or rejected by 
the State Senates like any other bills, just as the Federal 
Senate amends money bills brought up from the House. 

In one point a State Senate enjoys a special power, obviously 
modelled on that of the English House of Lords ami the 
Federal Senate. It sits as a court under oath for the trial of 
State officials impeached by the House. 2 Like the Federal 
Senate, it has in many States the power of confirming or 
rejecting appointments to office made by the governor. When 
il considers these it is said to "go into executive session." The 
power is an important one in those States which allow the 
governor to nominate the higher judges. In other respects 
the powers and procedure of the two Houses of a State 

1 Borne of the biennially-meeting legislatures are apt to hold adjourned 

sessions in the off years. 

- in Nfw York Impeachments are tried by tin- Senate and the Judges of the 
Court of Appeals sitting together: In Nebraska by the judges of the Supreme 
court, 



chap, xl STATE LEGISLATURES 489 

legislature are identical ; * except that, whereas the lieutenant- 
governor of a State is generally ex officio president of the Senate, 
with a casting vote therein, the House always chooses its own 
Speaker. The legal quorum is usually fixed, by the Constitu- 
tion, at a majority of the whole number of members elected, 2 
though a smaller number may adjourn and compel the attend- 
ance of absent members. Both Houses do most of their work 
by committees, much after the fashion of Congress, 3 and the 
committees are in both usually chosen by the Speaker (in 
the Senate by the President of that body), though it is often 
provided that the House (or Senate) may on motion vary their 
composition. 4 Both Houses sit with open doors, but in most 
States the Constitution empowers them to exclude strangers 
when the business requires secrecy. 

The State governor has of course no right to dissolve the 
legislature, nor even to adjourn it unless the Houses, while 
agreeing to adjourn, disagree as to the date. Such control as 
the legislature can exercise over the State officers by way of 
inquiry into their conduct is generally exercised by commit- 
tees, and it is in committees that the form of bills is usually 
settled and their fate decided, just as in the Federal Congress, 
the lobby having of course a great and usually a pernicious 
influence. The proceedings are rarely reported. Sometimes 
when a committee takes evidence on an important question re- 
porters are present, and the proceedings more resemble a public 
meeting than a legislative session. It need scarcely be added 
that neither House separately, nor both Houses acting together, 

1 Here and there one finds slight differences, as, for instance, in Vermont the 
power decennially to propose amendments to the Constitution belongs to the 
Senate, though the concurrence of the House is needed. However, I do not 
attempt in this summary to give every detail of every Constitution, but only a 
fair general account of what commonly prevails, and is of most interest to the 
student of comparative politics. 

2 Four constitutions fix the quorum at two-thirds, and two specify a number. 

3 See, as to the committees of Congress, Chapter XV. ante. Many constitu- 
tions provide that no bill shall pass unless it has been previously referred to 
and considered by a committee. 

4 In Massachusetts there were in 1890-91 six standing committees of the 
Senate, ten of the House, and thirty-three joint standing committees of both 
Houses. Tn North Dakota there were in 1891 thirty-seven standing committees 
of the House, thirty-one of the Senate, and six joint standing committees of 
House and Senate. In New York there were thirty-three standing committees 
of the Senate, thirty-six of the Assembly. 



490 THE STATE GOVERNMENTS part ii 

can control an executive officer otherwise than either by pass- 
ing a statute prescribing a certain course of action for him, 
which if it be in excess of their powers will be held unconsti- 
tutional and void, or by withholding the appropriations neces- 
sary to enable him to carry out the course of action he proposes 
to adopt. The latter method, where applicable, is the more 
effective, because it can be used by a bare majority of either 
House, whereas a bill passed by both Houses may be vetoed 
by the governor, a point so important as to need a few words. 

Four States, three of them original States, vest legislative 
authority in the legislature alone. These are Rhode Island, 
Delaware, North Carolina, and Ohio. All the rest require a 
bill to be submitted to the governor, and permit him to return 
it to the legislature with his objections. If he so returns it, it 
can only be again passed " over the veto " by something more 
than a bare majority. To so pass a bill over the veto there is 
required — 

In two States a majority of three-fifths in each House. 

In twenty-seven States a majority of two-thirds in each House. 

In nine States a majority in each House of all the members 
elected to that House. 

In two States (North Dakota and Wyoming), a majority of 
two-thirds of all the members elected. 

Here, therefore, as in the Federal Constitution, we find a 
useful safeguard against the unwisdom or misconduct of a leg- 
islature, and a method provided for escaping, in extreme cases, 
from those deadlocks which the system of checks and balances 
tends to occasion. 

I have adverted in a preceding chapter to the restrictions 
imposed on the legislatures of the States by their respective 
Constitutions. These restrictions, which are numerous, elabo- 
rate, and instructive, take two forms — 

I. Exclusions of a subject from legislative competence, i.e. 
prohibitions to the legislature to pass any law on certain enu- 
merated subjects. The most important classes of prohibited 
statutes are — 

Statutes inconsistent with democratic principles, as, for 
example, granting titles of nobility, favouring one relig- 
ious denomination, creating a property qualification for 
suffrage or office. 



chap, xl STATE LEGISLATURES 491 

Statutes against public policy, e.g. tolerating lotteries, im- 
pairing the obligation of contracts, incorporating or per- 
mitting the incorporation of banks, or the holding by a 
State of bank stock. 1 

Statutes special or local in their application, a very large 
and increasing category, the fulness and minuteness of 
which in many Constitutions show that the mischiefs 
arising from improvident or corrupt special legislation 
must have become alarming. The lists of prohibited sub- 
jects in the Constitutions of Missouri of 1875, Montana 
and North Dakota of 1889, Mississippi of 1890, are the 
most complete I have found. 2 

Statutes increasing the State debt beyond a certain limited 
amount, or permitting a local authority to increase its debt 
beyond a prescribed amount, the amount being usually 
fixed in proportion to the valuation of taxable property 
within the area administered by the local authority. 3 

II. Eestrictions on the procedure of the legislature, i.e. 
directions as to the particular forms to be observed and times 
to be allowed in passing bills, sometimes all bills, sometimes 
bills of a certain specified nature. Among these restrictions 
will be found provisions — 

As to the majorities necessary to pass certain bills, especially 
appropriation bills. Sometimes a majority of the whole 
number of members elected to each House is required, or 
a majority exceeding a bare majority. 

As to the method of taking the votes, e.g. by calling over the 
roll and recording the vote of each member. 

As to allowing certain intervals to elapse between each read- 
ing of a measure, and for preventing the hurried passage 
of bills, especially appropriation bills, at the end of the 
session. 

1 See, for instance, Constitution of Texas of 1876. 

2 Similar lists occur in the constitutions of all the Western and Southern 
States as well as of some Eastern States {e.g. Constitution of Pennsylvania of 
1873, Art. iii. § 7 ; Constitution of New York, amendments of 1874 to Constitu- 
tion of 1846) . Among them the prohibitions to grant divorces and to author- 
ize the adoption or legitimation of children are frequent. 

3 See also Chapter XLIII. on State Finance. The local authorities had been 
usually forbidden by statute to borrow or tax beyond a certain amount, but 
as they had formed the habit of obtaining dispensations from the State legis- 
latures, the check mentioned in the text has been imposed on the latter. 



492 THE STATE GOVERNMENTS part ii 

As to reading of bills publicly and at full length. 

As to sending all bills to a committee, and prescribing the 
mode of its action. 

Against secret sessions (Idaho). 

As to preventing an act from taking effect until a certain 
time, e.g. ninety days (South Dakota, Kentucky), after 
the adjournment of the session. 

Against changing the purpose of a bill during its passage. 

As to including in a bill only one subject, and expressing 
that subject in the title of the bill. 

Against re-enacting, or amending, or incorporating, any 
former act by reference to its title merely, without setting 
out its contents. 1 

The two latter classes of provisions might be found whole- 
some in England, where much of the difficulty complained of 
by the judges in construing the law arises from the modern 
habit of incorporating parts of former statutes, and dealing 
with them by reference. 2 

Where statutes have been passed by a legislature upon a 
prohibited subject, or where the prescribed forms have been 
transgressed or omitted, the statute will be held void so far as 
inconsistent with the Constitution. . 

Even these multiform restrictions on the State legislatures 
have not been found sufficient. Bitted and bridled as they are 
by the Constitutions, they contrive, as will appear in a later 
chapter, to do plenty of mischief in the direction of private or 
special legislation. 

Although State legislatures have of course no concern what- 
ever with foreign affairs, this is not deemed a reason for ab- 
staining from passing resolutions on that subject. The passion 
for what is called " resoluting " is strong everywhere in Amer- 

1 Indiana and Oregon direct every Act to be plainly worded, avoiding as far 
as possible technical terras, and Louisiana (Constitution of 1870, § 31) says: 
"The General Assembly shall never adopt any system or code of laws by gen- 
eral reference to such system or code of laws, but in all eases shall recite at 
length the several provisions of the laws it may enact." 

2 Not to add that the inclusion in one statute of wholly different matters 
may operate harshly on persons who have failed to note the minor contents 
of a bill whose principal purpose does not affect them. The commoners of the 

New Forest in Hampshire were, some years ago. surprised to awake one morn- 
ing and find that the Crown had smuggled through Parliament, in an Aet re- 
lating to foreshores in Scotland, a clause seriously prejudicial to their interests. 



chap, xl STATE LEGISLATURES 493 

ica, and an expression of sympathy with an oppressed foreign 
nationality, or of displeasure at any unfriendly behaviour of 
a foreign power, is not only an obvious way of relieving the 
feelings of the legislators, but often an electioneering device, 
which appeals to some section of the State voters. Accord- 
ingly such resolutions are common, and, though of course quite 
irregular, quite innocuous. 

Debates in these bodies are seldom well reported, and some- 
times not reported at all. One result is that the conduct of 
members escapes the scrutiny of their constituents ; a better 
one that speeches are generally short and practical, the motive 
for rhetorical displays being absent. If a man does not make 
a reputation for oratory, he may for quick good sense and busi- 
ness habits. However, so much of the real work is done in 
committees that talent for intrigue or " management " usually 
counts for more than debating power. 



CHAPTER XLI 

THE STATE EXECUTIVE 

The executive department in a State consists of a governor 
(in all the States), a lieutenant-governor (in thirty-two), and of 
various minor officials. The governor, who, under the earlier 
Constitutions of most of the original thirteen States, was 
chosen by the legislature, is now always elected by the peo- 
ple, and by the same suffrage, practically universal, as the 
legislature. He is elected directly, not, as under the Federal 
Constitution, by a college of electors. His term of office is, 
in nineteen States, four years ; in two States, three years ; in 
twenty-one States, two years ; and in two States (Massachu- 
setts and Rhode Island), one year. His salary varies from 
$10,000 in New York and Pennsylvania to $1000 in Michigan. 
Some States limit his re-eligibility ; but in those which do not 
there exists no tradition forbidding a third term of office 
similar to that which prevails in the Federal Government. 

The earlier Constitutions of the original States (except 
South Carolina) associated w r ith the governor an executive 
council 1 (called in Delaware the Privy Council), but these 
councils have long since disappeared, except in Massachusetts, 
Maine, and North Carolina, and the governor remains in soli- 
tary glory the official head and representative of the majesty 
of the State. His powers are. however, in ordinary times 

1 Another illustration of the tendency to reproduce England. Vermont was 
still under the influence of colonial precedents when it framed its Constitu- 
tions of 1786 and 1793. Maine was Influenced by Massachusetts. None of t ho 
newer Western States has ever tried the experiment of such a eouneil. 

New York had originally two Councils, a "Council of Appointment," con- 
sisting of the Governor and a Senator from each of the (originally four) 
districts, and a ••Council of Revision," consisting <>f the Governor, the 
Chancellor and the Judges o\' the Supreme court, and possessing a veto on 
statutes. The Governor has now, since the extinction oi these two councils, 
obtained some of the patronage which belonged to the former as well as the 
veto which belonged to the latter. 
484 



chap, xli THE STATE EXECUTIVE 495 

more specious than solid, and only one of them is of great 
practical value. He is charged with the duty of seeing that 
the laws of the State are faithfully administered by all offi- 
cials and the judgments of the courts carried out. He has, in 
nearly all States, the power of reprieving and pardoning of- 
fenders, but in some this does not extend to treason or to 
conviction on impeachment (in Vermont he cannot pardon for 
murder), and in some, other authorities are associated with 
him in the exercise of this prerogative. Some recent Consti- 
tutions impose restrictions which witness to a distrust of his 
action; nor can it be denied that the power has sometimes 
been used to release offenders {e.g. against the election laws) 
who deserved no sympathy. The governor is also commander- 
in-chief of the armed forces of the State, can embody the 
militia, repel invasion, suppress insurrection. The militia are 
now important chiefly as the force which may be used to sup- 
press riots, latterly not unfrequent in connection with labor 
disputes. Massachusetts has also created a small State police 
force (called the District Police), placing it at the disposal of 
the governor for the maintenance of order, wherever disturbed, 
and for the enforcement of various administrative regulations. 
It has recently been proposed to establish a State police in 
Pennsylvania for the same purposes. Michigan has (and Mas- 
sachusetts and Khode Island formerly had) a State police for 
the enforcement of their anti-liquor legislation. 

He appoints some few officials, but seldom to high posts, 
and in many States his nominations require the approval of 
the State Senate. Patronage, in which the President of the 
United States finds one of his most desired and most disa- 
greeable functions, is in the case of a State governor of slight 
value, because the State offices are not numerous, and the 
more important and lucrative ones are filled by the direct 
election of the people. He has the right of requiring informa- 
tion from the executive officials, and is usually bound to com- 
municate to the legislature his views regarding the condition 
of the commonwealth. He may also recommend measures to 
them, but does not frame and present bills. In a few States 
he is directed to present estimates. He has in all the States 
but four a veto upon bills passed by the legislature. 1 This 

!It deserves to be remarked that neither the Constitution of the Swiss 
Confederation nor any cantonal constitution vests a veto in any officer. 



496 THE STATE GOVERNMENTS pari ii 

veto may be overridden in manner already indicated (see last 
preceding chapter), but generally kills the measure, because if 
the bill is a bad one, it calls the attention of the people to the 
fact and frightens the legislature, whereas if the bill be an un- 
objectionable one, the governor's motive for vetoing it is prob- 
ably a party motive, and the requisite overriding majority can 
seldom be secured in favour of a bill which either party dislikes. 
The use of his veto is, in ordinary times, a governor's most 
serious duty, and chiefly by his discharge of it is he judged. 

Although much less sought after and prized than in "the 
days of the Fathers," when a State governor sometimes refused 
to yield precedence to the President of the United States, the 
governorship is still, particularly in New England, and the 
greater States, a post of some dignity, and affords an oppor- 
tunity for the display of character and talents. It was in his 
governorship of NeAV York that Mr. Cleveland, for instance, 
commended himself to his party, and rose to be President of 
the United States. Similarly Mr. Hayes was put forward for 
the Presidency in 1876 because he had been a good governor of 
Ohio. . During the Civil War, when each governor was respon- 
sible for enrolling, equipping, officering, and sending forward 
troops from his State, 1 and when it rested with him to repress 
attempts at disorder, much depended on his energy, popularity, 
and loyalty. In some States men still talk of the "war gov- 
ernors " of those days as heroes to whom the North owed deep 
gratitude. And since the Pennsylvanian riots of 1877 and those 
which have subsequently occurred in Cincinnati and Chicago 
have shown that tumults may suddenly grow to serious propor- 
tions, it has in many States become important to have a man 
of prompt decision and fearlessness in the office which issues 
orders to the State militia. The elective Lieutenant-Governor 
who, in most States, steps into the governor's place if it be- 
comes vacant, is usually also ex officio President of the Senate, 8 

Switzerland seems in this respect more democrat ie than the American States. 
While in the amount of authority which the Swiss allow to the e-xeentive gov- 
ernment over the citizen (as witness the case of the Salvation Army troubles 

in Canton Bern) they are less democratic. 

1 Commissions to officers up to the rank of colonel inclusive were usually 

issued by the governor of the State: the regiment, in fact, was a State product, 
though the regular Federal army is of course raised and managed by thi 
oral Governmenl directly. 

- In Rhode Island the governor presides over the Senate, an interesting 
Survival of European arrangements. 



chap, xli THE STATE EXECUTIVE 497 

as the Vice-President of the United States is of the Federal 
Senate. Otherwise he is an insignificant personage, though 
sometimes a member of some of the executive boards. 1 

The names and duties of the other officers vary from State 
to State. The most frequent are a secretary of state (in all 
States), a treasurer (in all), an attorney-general, a comptroller, 
an auditor, a superintendent of public instruction. Now and 
then we find a State engineer, a surveyor, a superintendent of 
prisons. Some States have also various boards of commission- 
ers, e.g. for railroads, for canals, for prisons, for the land office, 
for agriculture, for labour, for immigration. Most of these 
officials are in nearly all States elected by the people at the 
general State election. Sometimes, however, they, or some of 
them, are either chosen by the legislature, or, more rarely, ap- 
pointed by the governor, whose nomination usually requires 
the confirmation of the Senate. Their salaries, which of course 
vary with the importance of the office and the parsimony of 
the State, seldom exceed $5000 (£1000) per annum and are 
usually smaller. So, too, the length of the term of office varies. 
It is often the same as that of the governor, and never exceeds 
four years, except that in New Jersey, a conservative State, 
the secretary and attorney-general hold for five years ; and 
in Tennessee the attorney-general, who, oddly enough, is ap- 
pointed by the supreme court of the State, holds for eight. 

It has already been observed that the State officials are in no 
sense a ministry or cabinet to the governor. Holding indepen- 
dently of him, and responsible neither to him nor to the legis- 
lature, but to the people, they do not take generally his orders, 
and need not regard his advice. 2 Each has his own department 

1 Where there is no lieutenant-governor, the President of the State Senate 
or the Secretary of State usually succeeds if the governor dies or becomes 
incapable. 

2 Florida, by her Constitution of 1868, Art. vi. 17, and Art. viii., created a 
"cabinet of administrative officers," consisting of eight officials, appointed by 
the governor, with the consent of the Senate, to hold office for the same time 
as the governor, and " assist the governor in the performance of his duties." 
However, in her Constitution of 1886 she simply provides that "the governor 
shall be assisted by administrative officers," viz. secretary of state, attorney- 
general, comptroller, treasurer, superintendent of public instruction, and com- 
missioner of agriculture, all elected by the people at the same time with the 
governor and for the same term. The council of North Carolina (Const, of 
1868) consists of five officials, who are to "advise the governor in the execu- 
tion of his duty," but they are elected directly by the people. Their position 

VOL. I 2 K 



498 THE STATE GOVERNMENTS part 11 

to administer, and as there is little or nothing political in the 
work, a general agreement in policy, such as must exist between 
the Federal President and his ministers, is not required. Policy 
rests with the legislature, whose statutes, prescribing minutely 
the action to be taken by the officials, leave little room for 
executive discretion. Europeans may realize the nature of the 
system by imagining a municipal government in which the 
mayor, town clerk, health officer, and city architect are all 
chosen directly by the people, instead of by the common coun- 
cil, and in which each of these officials is for most purposes, 
independent not only of the mayor, but also of the common 
council, except in so far as the latter has the right of granting 
money, and as it can act by general ordinances — that is to 
say, act as a legislative and not as an administrative body. 1 

To give a clearer idea of the staff of a State government I 
will take the great State of Ohio, and give the functions of 
the officials by whom it is administered. 

The executive officials of Ohio were in 1891 — 
A Governor, elected by the people for two years. His chief 
duties are to execute the laws, convene the legislature on 
extraordinary occasions, command the State forces, ap- 
point staff officers and aides-de-camp, grant pardons and 
reprieves, issue commissions to State and county officers, 
make a variety of appointments, serve on certain boards, 
and remove, with the assent of the Senate, any official ap- 
pointed by him and it. He is paid $8000 (£1600) a year. 
A Lieutenant-Governor, elected for two years, salary $800 a 
year, with the duty of succeeding to the governor (in 
case of death or disability), and of presiding in the Senate. 
A Secretary of State, elected for two years (along with the 
governor), salary $2000 a year, besides sundry fees for 
copies of documents. His duties are to take charge of 

maybe compared with that of the Council of India under recent English stat- 
utes towards the Secretary of State for India. Massachusetts has always had 
an "executive council" consisting of eighl persons chosen annually by the 
people in districts. They "advise the governor in the executive part of the 

government " and have the righl of rejecting nominations to office made by 

him. Here too we find a survival, which at present seems to do more harm 

than good, because it lessens the governor's responsibility. 

1 In the Swiss Confederation the Federal Council of Seven consists of persons 
belonging to different parties, who sometimes speak against one another in the 
chambers (where they have the right of speech), but this is not found to inter- 
fere With their harmonious working as an administrative body. 



chap, xli THE STATE EXECUTIVE 499 

laws and documents of the State, gather and report sta- 
tistics, distribute instructions to certain officers, and act 
as secretary to certain boards, to serve on the State print- 
ing and State library boards, to make an abstract of the 
votes for candidates at presidential and State elections. 

A State Auditor, elected for four years, salary $3000. Duties 
— to keep accounts of all moneys in the State treasury, 
and of all appropriations and warrants, to give warrants 
for all payments from or into the treasury, to conduct 
fiuancial communications with county authorities, and 
direct the attorney-general to prosecute revenue claims, 
to serve on various financial boards, and manage various 
kinds of financial business. 

A State Treasurer, elected for two years, salary $3000. Du- 
ties — to keep account of all drafts, paying the money 
into the treasury, and of auditor's warrants for drafts 
from it, and generally to assist and check the auditor in 
the supervision and disbursement of State revenues, pub- 
lishing monthly statements of balances. 

A State Attorney-General, elected for two years, salary $1500 
a year, and 3 per cent on all collections made for the State, 
but total not to exceed $3000 a year in all. Duties — to ap- 
pear for the State in civil and criminal cases, advise legally 
the governor and other State officers, and the Assembly, 
proceed against offenders, enforce performance of charitable 
trusts, submit statistics of crime, sit upon various boards. 

A State Commissioner of Common Schools, elected for three 
years, salary $2000 a year. Duties — to visit and advise 
teachers' institutes, boards of education, and teachers, de- 
liver lectures on educational topics, see that educational 
funds are legally distributed, prepare and submit annual 
reports on condition of schools, appoint State board of ex- 
aminers of teachers. 

Three Members of Board of Public Works, elected for three 
years, one in each year, salary $800 a year, and travelling 
expenses, not exceeding $50 a month. Duties — to man- 
age and repair the public works (including canals) of the 
State, appoint and supervise minor officials, let contracts, 
present annual detailed report to the governor. 

A State Dairy and Food Commissioner, elected for two years, 
salary $1200, and travelling expenses. 



500 THE STATE GOVERNMENTS 



Besides these, the people of the State elect the judges and 
the clerk of the supreme court. Other officials are either 
elected by the people in districts, counties, or cities, or ap- 
pointed by the governor or legislature. 

Of the subordinate civil service of a State there is little to 
be said. Though it is not large, for the sphere of administra- 
tive action which remains to the State between the Federal 
government on the one side, and the county, city, and town- 
ship governments on the other, is not wide, it increases daily, 
owing to the eagerness of the people (especially in the West) 
to have State aid rendered to farmers, to miners, to stock-keep- 
ers, and generally in the material development of the country. 
Much is now done in the way of collecting statistics and issu- 
ing reports. However, these administrative bureaux are sel- 
dom well manned, for the State legislatures are parsimonious, 
and do little, by good salaries or otherwise, to induce able men 
to enter it : while the so-called " Spoils System," which has 
been hitherto applied to State no less than to Federal offices, 
too often makes places the reward for electioneering and 
wirepulling. Efforts are now being made in some States to 
introduce reforms similar to those begun in the Federal admin- 
istration, whereby certain walks of the civil service shall be 
kept out of politics, at least so far as to secure competent men 
against dismissal on party grounds. Such reforms would in 
no case apply to the higher officials chosen by the people, for 
they are always elected for short terms and on party lines. 

Every State, except Oregon, provides for the impeachment 
of executive officers for grave offences. In all, save two, the 
State House of Representatives is the impeaching body; and 
in all but Nebraska the State Senate sits as the tribunal, a 
two-thirds majority being generally required for a conviction. 
Impeachments are rare in practice. 

There is also in many States a power of removing officials, 
sometimes by the vote of the legislature, sometimes by the 
governor on the address of both houses, or by the governor 
either alone, or with the concurrence of the Senate. Such 
removals must of course be made in respect of some offence, 
or for some other sufficient cause, not from caprice or party 
motives; and when the case docs not seem to justify imme- 
diate removal, the governor is frequently empowered to sus- 
pend the officer, pending an investigation of ids conduct. 



CHAPTER XLII 

THE STATE JUDICIARY 

The Judiciary in every State includes three sets of courts : 
— A supreme court or court of appeal; superior courts of 
record; local courts; but the particular names and relations 
of these several tribunals and the arrangements for criminal 
business vary greatly from State to State. We hear of courts 
of common pleas, probate courts, 1 surrogate courts, prerogative 
courts, courts of oyer and terminer, orphans' courts, court of 
general sessions of the peace and gaol delivery, quarter ses- 
sions, hustings courts, county courts, etc. etc. All sorts of 
old English institutions have been transferred bodily, and 
sometimes look as odd in the midst of their new surroundings 
as the quaint gables of a seventeenth-century house among 
the terraces of a growing London suburb. As respects the 
distinction which Englishmen used to deem fundamental, that 
of courts of common law and courts of equity, there has been 
great diversity of practice. Most of the original thirteen 
colonies once possessed separate courts of chancery, and these 
were maintained for many years after the separation from 
England, and were imitated in a few of the earlier among the 
new States, such as Michigan, Arkansas, Missouri. In some 
of the old States, however, the hostility to equity jurisdiction, 
which marked the popular party in England in the seventeenth 
century, had transmitted itself to America. Chancery courts 
were regarded with suspicion, because thought to be less bound 
by fixed rules, and therefore more liable to be abused by an 
ambitious or capricious judiciary. 2 Massachusetts, for instance, 

1 Admiralty business is within the exclusive jurisdiction of the Federal 
courts. 

2 Note that the grossest abuses of judicial power by American judges, such 
as the Erie Railroad injunctions of Judge Barnard of New York in 1869, were 
perpetrated in the exercise of equitable jurisdiction. Equity in granting dis- 
cretion opens a door to indiscretion, or to something worse. 

501 



502 THE STATE GOVERNMENTS part n 

would permit no such court, though she was eventually obliged 
to invest her ordinary judges with equitable powers, and to 
engraft a system of equity on her common law, while still 
keeping the two systems distinct. Pennsylvania held out still 
longer, but she also now administers equity, as indeed every 
civilized State must do in substance, dispensing it, however, 
through the same judges as those who apply the common law, 
and having more or less worked it into the texture of the older 
system. Special chancery courts were abolished in Xew York, 
where they had nourished and enriched American jurispru- 
dence by many admirable judgments, by the democratizing 
constitution of 1846 ; and they now exist only in a few of the 
States, chiefly older Eastern or Southern States, 1 which, in 
judicial matters, have shown themselves more conservative 
than their sisters in the West. In four States only (Xew 
York, North Carolina, California, and Idaho) has there been 
a complete fusion of law and equity, although there are several 
others which have provided that the legislature shall abolish 
the distinction between the two kinds of procedure. Many, 
especially of the newer States, provide for the establishment 
of tribunals of arbitration and conciliation. 

The jurisdiction of the State courts, both civil and criminal, 
is absolutely unlimited, i.e. there is no appeal from them to 
the Federal courts, except in certain cases specified by the 
Federal Constitution, being cases in which some point of Fed- 
eral law arises. Certain classes of cases are, of course, reserved 
for the Federal courts and in some the State courts enjoy a 
concurrent jurisdiction. 2 All crimes, except such as are pun- 
ishable under some Federal statute, are justiciable by a State 
court; and it is worth remembering that in most States there 
exist much wider facilities for setting aside the verdict of a 
jury finding a prisoner guilty, by raising all sorts of points of 
law, than are permitted by the law and practice of England, or 
indeed of any European country. Such facilities have been 
and are abused, to the great detriment of the community. 

One or two other points relating to law and justice in the 
States require notice. Each State recognizes the judgments 
of the courts of a sister State, gives credit to its public acts 

1 District ohancery courts remain in Delaware. New Jersey, Vermont, Ten- 
nessee*, Alabama, Mississippi. * See Chapter XXII. ante. 



chap, xlii THE STATE JUDICIARY 503 

and records, and delivers up to its justice any fugitive from its 
jurisdiction, permitting him, moreover, to be (if necessary) 
tried for some other offence than that in respect of which his 
extradition was obtained. Of course the courts of one State 
are not bound either by law or usage to follow the reported 
decisions of those of another State. They use such decisions 
merely for their own enlightenment, and as some evidence of 
the common law, just as they use the English law reports. 
Most of the States have within the last half century made 
sweeping changes, not only in their judicial system, but in the 
form of their law. They have revised and codified their stat- 
utes, a corrected edition whereof is issued every few years. 
They have in many instances adopted codes of procedure, and 
in some cases have even enacted codes embodying the sub- 
stance of the common law, and fusing it with the statutes. 
Such codes, however, have been condemned by the judgment 
of the abler and more learned part of the profession, as render- 
ing the law more uncertain and less scientific. 1 A warm con- 
troversy has lately been raging in New York on the subject. 
But with the masses of the people the proposal is popular, for 
it holds out a prospect, unfortunately belied by the result in 
States which, like California, have tried the experiment, of a 
system whose simplicity will enable the layman to understand 
the law, and render justice cheaper and more speedy. A 
really good code might have these happy effects. But it may 
be doubted whether the codifying States have taken the steps 
requisite to secure the goodness of the codes they enact. And 
there is a grave objection to the codification of State law which 
does not exist in a country like England or France. So long 
as the law of a State remains common law, i.e. rests upon 
custom and decisions given by the judges, the law of each 
State tends to keep in tolerable harmony with that of other 
States, because each set of judges is enlightened by and dis- 
posed to be influenced by the decisions of the Federal courts 
and of judges in other States. But when the whole law of a 
State has been enacted in the form of a code all existing 

1 This is perhaps less true of Louisiana, where the civil law of Rome, which 
may be said to have been the common law of the State, offered a better basis 
for a code than the English common law does. The Louisiana code is based on 
the Code Napoleon. 



504 THE STATE GOVERNMENTS iakt 11 

divergences between one State and another are sharpened and 
perpetuated, and new divergences probably created. Hence 
codification increases the variations of the law between differ- 
ent States, and these variations may impede business and dis- 
turb the ordinary relations of life. 

Important as are the functions of the American judiciary, the 
powers of a judge are limited by the State Constitutions in a 
manner surprising to Europeans. He is not generally allowed 
to charge the jury on questions of fact, 1 but only to state the 
law. He is sometimes required to put his charge in writing. 
His power of committing for contempt of court is often re- 
stricted. Express rules forbid him to sit in causes wherein he 
can have any family or pecuniary interest. In one Constitu- 
tion his punctual attendance is enforced by the provision that 
if he does not arrive in court within half an hour of the time 
fixed for the sitting, the attorneys of the parties may agree on 
some person to act as judge, and proceed forthwith to the trial 
of the cause. And in California he is not allowed to draw his 
salary till he has made an affidavit that no cause that has been 
submitted for decision for ninety days remains undecided in 
his court. 2 

I come now to three points, which are not only important 
in themselves, but instructive as illustrating the currents of 
opinion which have influenced the peoples of the States. These 
are — 

The method of appointing the judges. 

Their tenure of office. 

Their salaries. 

The remarkable changes that have been made in the two 
former matters, and the strange practice which now prevails 
in the latter, are full of significance for the student of mod- 
ern democracy, full of warning for Europe and the British 
colonies. 

1 A frequent form is that in the Constitution of Tennessee of 1870 (Art.vi.§ 9) 
— "Judges shall not charge juries with respect to matters of fact, but may 
state the testimony and declare the law." Washington forbids even comments 

on facts. Several Constitutions are silent on the point. 

- The California!] judges are said to have contrived to evade this. Idaho has 
a similar provision, hut gives the Judge only thirty days. Montane provides 

thai any judicial officer who absents himsell more than sixty consecutive days 
from tin State shall be deemed to have forfeited his office. 



chap, xlii THE STATE JUDICIAEY 505 

In colonial days the superior judges were appointed by the 
Governors, except in Rhode Island and Connecticut, where the 
legislature elected them. When, in and after 1776, the States 
formed their first Constitutions, four States, 1 besides the two 
just named, vested the appointment in the legislature, five 2 
gave it to the Governor with the consent of the council ; 
Delaware gave it to the legislature and President ( = Governor) 
in joint ballot, while Georgia alone entrusted the election to the 
people. 

In the period between 1812 and 1860, when the tide of 
democracy was running strong, the function was in several of 
the older States taken from the Governor or the legislature to 
be given to the people voting at the polls ; and the same be- 
came the practice among the new States as they were succes- 
sively admitted to the Union. Mississippi, in 1832, made all 
her judges elected by the people. The decisive nature of the 
change was marked by the great State of New York, which, in 
her highly democratic Constitution of 1846, transferred all 
judicial appointments to the citizens at the polls. 

At present we find that in thirty-one States, the judges are 
elected by the people. These include nearly all the Western 
and South- Western States, besides New York, Pennsylvania, 
and Ohio. 

In five States 3 they are elected by the legislature. 

In eight States 4 they are appointed by the Governor, subject 
however to confirmation either by the council, or by the legis- 
lature, or by one House thereof. 

It will be observed that nearly all the thirteen States which 
do not appoint the judge by popular election either belong to 
the original thirteen colonies or are States. which have been 
specially influenced by one of those thirteen (as, for instance, 
Maine was influenced by Massachusetts). It is these older 
commonwealths that have clung to the less democratic methods 
of choosing judicial officers; while the new democracies of the 
West, together with the most populous States of the East, New 

1 Virginia, New Jersey, North Carolina, and South Carolina. 

2 Massachusetts, New Hampshire, Pennsylvania, Maryland, New York. 

3 Ehode Island, Vermont, Virginia, South Carolina, Georgia. 

4 Massachusetts, Connecticut, New Hampshire, Delaware, Maine, Missis- 
sippi, New Jersey, Louisiana; in the last of which, however, district judges, 
and in Maine and Connecticut probate judges, are popularly elected. 



506 THE STATE GOVERNMENTS part ii 

York and Pennsylvania, States thoroughly democratized by 
their great cities, have thrown this grave and delicate function 
into the rude hands of the masses, that is to say, of the wire- 
pullers. 

Originally, the superior judges were, in most States, like 
those of England since the Revolution of 1688, appointed for 
life, and held office during good behaviour, i.e. were removable 
only when condemned on an impeachment, or when an address 
requesting their removal had been presented by both houses 
of the legislature. 1 A judge may be removed upon such an 
address in thirty-six States, a majority of two-thirds in each 
house being usually required. The salutary provision of the 
British Constitution against capricious removals has been 
faithfully adhered to. But the wave of democracy has in 
nearly all States swept away the old system of life-tenure. 
Only four now retain it. 2 In the rest a judge is elected or 
appointed for a term, varying from two years in Vermont to 
twenty-one years in Pennsylvania. Eight to ten years is the 
average term prescribed; but a judge is always re-eligible, 
and likely to be re-elected if he be not too old, if he has given 
satisfaction to the bar, and if he has not offended the party 
which placed him on the bench. 

The salaries paid to State judges of the higher courts range 
from $8500 (£1700), (chief-justice), in Pennsylvania, and 
$10,000 (£2000) in New York, to $2000 in Oregon and $2600 
in Vermont. $4000 to $5000 (-f $500 to the chief judge) is 
the average, a sum which, especially in the greater States, fails 
to attract the best legal talent. To the rule that justices of the 
inferior courts receive salaries proportionately lower, there 
are exceptions in large cities, where judges of lower tribunals, 
being more " in politics " can sometimes secure salaries quite 
out of proportion to their status. 3 In general the new West- 
ern States are the worst paymasters, their population of 

1 The power of impeachment remains but is not often used. 

2 Massachusetts, Rhode Island, Now Hampshire, Delaware, all of them among 
the original thirteen. In Rhode Island the judges are in theory disinissible by 
the legislature. In Florida, though the three justices of the supreme court are 
now (Constitution of 1886) elected by the people, the seven circuit judges are 
appointed by the governor. 

a E.g. the police justices of Now York City and the circuit judges of Wayne 
County, Michigan, in which Detroit stands. 



chap, xlii THE STATE JUDICIARY 507 

farmers not perceiving the importance of securing high ability 
on the bench, and deeming $4000 a larger sum than a quiet- 
living man can need. The lowness of the scale on which the 
salaries of Federal judges are fixed confirms this tendency. 

Any one of the three phenomena I have described — popu- 
lar elections, short terms, and small salaries — would be 
sufficient to lower the character of the judiciary. Popular 
elections throw the choice into the hands of political parties, 
that is to say, of knots of wirepullers inclined to use every 
office as a means of rewarding political services, and garrison- 
ing with grateful partisans posts which may conceivably be- 
come of political importance. Short terms, though they afford 
useful opportunities of getting rid of a man who has proved a 
failure, but done no act justifying an address for his removal, 
oblige the judge to remember and keep on good terms with 
those who have made him what he is, and in whose hands his 
fortunes lie. They induce timidity, they discourage independ- 
ence. And small salaries prevent able men from offering them- 
selves for places whose income is perhaps only one-tenth of 
what a leading barrister can make by private practice. Putting 
the three sources of mischief together, no one will be surprised 
to hear that in many of the American States the State judges 
are men of moderate abilities and scanty learning, inferior, 
and sometimes vastly inferior, to the best of the advocates 
who practise before them. It is less easy to express a general 
opinion as to their character, and particularly as to what is 
called, even in America where fur capes are not worn, the " purity 
of the judicial ermine." Pecuniary corruption seems, so far 
as a stranger can ascertain, to be rare, perhaps very rare, but 
there are other ways in which sinister influences can play on a 
judge's mind, and impair that confidence in his impartiality 
which is almost as necessary as impartiality itself. And apart 
from all questions of dishonesty or unfairness, it is an evil 
that the bench should not be intellectually and socially at least 
on a level with the bar. 

The mischief is serious. But I must own that it is smaller 
than a European observer is prepared to expect. In most of the 
States where the elective system prevails the bench is respect- 
able ; and in some it is occasionally adorned by men of the 
highest eminence. Michigan, for instance, has during many 



508 THE STATE GOVERNMENTS part ii 

years had a strong and respected judiciary. One of its recent 
judges sat for thirty-two years, having been re-elected six 
times in succession. Not even in California or Arkansas are 
the results so lamentable as might have been predicted. New 
York City, under the dominion of the Tweed Ring, has af- 
forded the only instance of flagrant judicial scandals ; and 
even in those loathsome days, the Court of Appeals at Albany, 
the highest tribunal of the State, retained the respect of good 
citizens. Justice in civil causes between man and man is 
fairly administered over the whole Union, and the frequent 
failures to convict criminals, or punish them when convicted, 
are attributable not so much either to weakness or to partiality 
on a judge's part as to the tenderness of juries and the inordi- 
nate delays and complexity of criminal procedure. 

Why then have sources of evil so grave failed to produce 
correspondingly grave results ? Three reasons may be sug- 
gested : — 

One is the co-existence in every State of the Federal tribunals, 
presided over by judges who are usually capable and always 
upright. Their presence helps to keep the State judges, how- 
ever personally inferior, from losing the sense of responsibility 
and dignity which befits the judicial office, and makes even 
party wirepullers ashamed of nominating as candidates men 
either tainted or notoriously incapable. 

Another is the influence of a public opinion which not only 
recognizes the interest the community has in an honest admin- 
istration of the law, but recoils from turpitude in a highly 
placed official. The people act as a check upon the party con- 
ventions that choose candidates, by making them feel that they 
damage themselves and their cause if they run a man of doubt- 
ful character, and the judge himself is made to dread public 
opinion in the criticisms of a very unreticent press. Demo- 
cratic theory, which has done a mischief in introducing the 
elective system, partly cures it by subjecting the bench to a 
light of publicity which makes honesty the safest policy. 
Whatever passes in court is, or. may be, reported. The judge 
must give his reasons for every judgment he delivers. 

Lastly, there is the influence of the bar, a potent influence 
even in the present day, when its r6le is less brilliant than in 
former generations. The local party leaders who select the 



chap, xlii THE STATE JUDICIARY 509 

candidates and "run" the conventions are in some States 
mostly lawyers themselves, or at least in close relations with 
some leading lawyers of the State or district. Now lawyers 
have not only a professional dislike to the entrusting of law 
to incapable hands, the kind of dislike which a skilled brick- 
layer has to seeing walls badly laid, but they have a personal 
interest in getting fairly competent men before whom to 
plead. It is no pleasure to them to have a judge so ignorant 
or so weak that a good argument is thrown away upon him, 
or that you can feel no confidence that the opinion given to a 
client, or a point of law which you think clear, will be veri- 
fied by the decision of the court. Hence the bar often con- 
trives to make a party nomination for judicial office fall, not 
indeed on a leading barrister, because a leading barrister will 
not accept a place with $4000 a year, when he can make 
$14,000 by private practice, but on as competent a member 
of the party as can be got to take the post. Having con- 
stantly inquired, in every State I visited wherein the system 
of popular elections to judgeships prevails, how it happened 
that the judges were not worse, I was usually told that the 
bar had interposed to prevent such and such a bad nomina- 
tion, or had agreed to recommend such and such a person as 
a candidate, and that the party had yielded to the wishes of 
the bar. Occasionally, when the wirepullers are on their good 
behaviour, or the bar is exceptionally public-spirited, a person 
will be brought forward who has no claims except those of char- 
acter and learning. But it is perhaps more common for the 
lawyers to put pressure on one or other party in nominating 
its party candidates to select capable ones. Thus when a few 
years ago the Eepublicans of New York State were running 
bad candidates, some leading Republican lawyers persuaded 
the Democrats to nominate better men, and thereupon issued 
an appeal in favour of these latter, who were accordingly car- 
ried at the ensuing election. 

These causes, and especially the last, go far to nullify the 
malign effects of popular election and short terms. But they 
cannot equally nullify the effect of small salaries. Accord- 
ingly, while corruption and partiality are uncommon among 
State judges, inferiority to the practising counsel is a con- 
spicuous and frequent fault. 



610 THE STATE GOVERNMENTS part ii 

One is obliged to speak generally, because there are differ- 
ences between the various States too numerous to be partic- 
ularized. In some, especially in the North- West, the tone of 
the party managers and of the bar is respectable, and the 
sense of common interest makes everybody wish to have as 
good men as the salaries will secure. In others there are 
traditions ivhich even unscrupulous wirepullers fear to violate. 
Pennsylvania, for instance, though her legislature and her city 
governments have been impure, and little under the influence 
of the bar, still generally elects capable judges. 1 The scan- 
dals of Barnard and Cardozo 2 were due to the fact that the 
vast and ignorant population of New York was dominated by 
a gang of professional politicians who neither feared the good 
citizens nor regarded the bar. 

As there are institutions which do not work as well as they 
theoretically ought, so there are happily others which work 
better. The sale of offices under the old monarchy of France, 
the sale of commissions in the English army till 1871, the 
bribery of electors which in England was once so rife, the sale 
of advowsons and next presentations to livings which still 
exists in the Anglican Church Establishment, were or are all 
of them indefensible in theory, all mischievous in practice. 
But none of them did so much harm as a philosophical observer 
would have predicted, because other causes were at work to 
mitigate and minimize their evils. 

The changes of the last twenty years have been on the 
whole for the better. Some States which had vested the ap- 
pointment of judges in the legislature, like Connecticut, or 
in the people, like Mississippi, have by recent constitutional 
amendments or new Constitutions, given it to the governor 
with the consent of the legislature or of one house thereof. 3 
Others have raised the salaries, or lengthened the terms of 
the judges, or, like New York, have introduced both these 
reforms. Between I860 and 1891, although the eight Western 
new States admitted within that period have all vested the 

1 Pennsylvania, it is fair to say, pays better than most States, and gives 
long terms, so she can obtain better men than most. 

2 The notorious Tweed Ring judges of 1869-71. 

3 in Conn cticut the change was made at t lie instance of the Bar Associa- 
tion of the State, which had Been With regret that the dominant party in the 
State legislature was placing inferior men on the bench. 



chap, xlii THE STATE JUDICIARY 511 

choice of judges in the people, and although Kentucky in 1891 
could not be induced, in spite of the decline of her Bench from 
its ancient fame, to restore the system of appointment by the 
Executive which had prevailed till 1850, no one of the older 
States except Florida, took appointments from legislature or 
governor to entrust them to popular vote. In this point at least, 
the tide of democracy which went on rising for so many years, 
seems, if not receding, at least to have touched high-water 
mark. The American people, if sometimes bold in their ex- 
periments, have a fund of good sense which makes them 
watchful of results, and not unwilling to reconsider their 
former decisions. 



CHAPTER XLIII 



STATE FINANCE 



The financial systems in force in the several States furnish 
one of the widest and most instructive fields of study that the 
whole range of American institutions presents to a practical 
statesman, as well as to a student of comparative politics. It 
is much to be wished that some person equipped with the 
necessary special knowledge could survey them with a philo- 
sophic eye, and present the results of his survey in a concise 
form. From such an attempt I am interdicted not only by the 
want of that special knowledge, but by the compass of the sub- 
ject, and the difficulty of obtaining in Europe adequate mate- 
rials. These materials must be sought not so much in the 
Constitutions of the States as in their statutes, and in the re- 
ports presented by the various financial officials, and by the 
special commissions occasionally appointed to investigate the 
subject or some branch of it. All I can here attempt is to 
touch on a few of the more salient features of the topic, and to 
cull from the Constitutions some illustrations of the dangers 
feared and the remedies desired by the people of the States. 
What I have to say falls under the heads following : 

Purposes for which State revenue is required. 

Forms of taxation. 

Exemptions from taxation. 

Methods of collecting taxes. 

Limitations imposed on the power of taxing. 

State indebtedness. 

Restrictions imposed on the borrowing power. 

I. The budget of a State is seldom large, in proportion to 
the wealth of its inhabitants, because the chief burden of 
administration is borne not by the State, but by its subdivi- 
sions, the counties, and still more the cities and townships. 
5X9 



chap, xliii STATE FINANCE 513 

The chief expenses which a State undertakes in its corporate 
capacity are — (1) The salaries of its officials, executive and 
judicial, and the incidental expenses of judicial proceedings, 
such as payments to jurors and witnesses ; (2) the State vol- 
unteer militia ; (3) charitable and other public institutions, 
such as State lunatic asylums, State universities, agricultural 
colleges, etc. ; l (4) grants to schools ; 2 (5) State prisons, 
comparatively few, since the prison is usually supported by 
the county ; (6) State buildings and public works, including, 
in a few cases, canals ; (7) payment of interest on State 
debts. Of the whole revenue collected in each State under 
State taxing laws, a comparatively small part is taken by the 
State itself and applied to State purposes. 3 In 1882 only seven 
States raised for State purposes a revenue exceeding $2,000,- 
000. In 1891 the gross revenue of New York was $21,243,639 
(pop. in 1890 6,000,000) ; of Ohio, $3,419,000 (pop. 3,680,000). 
These are small sums when compared either with the popula- 
tion and wealth of these States, or with the revenue raised in 
them by local authorities for local purposes. They are also 
small in comparison with what is raised by indirect taxation for 
federal purposes. 

II. The National government raises its revenue by indirect 
taxation, and by duties of customs and excise, 4 though it has 
the power of imposing direct taxes, and used that power freely 

1 The Constitutions of Louisiana and Georgia allow State revenue to be ap- 
plied to the supplying of wooden legs and arms to ex-Confederate soldiers ; 
Mississippi directs pensions to he provided for them or their widows. 

2 All States have set apart for the support of schools, agricultural and 
mechanical colleges, and other educational or benevolent institutions, often in- 
cluding universities, a considerable fund derived from the sale of Western 
lands granted for the purpose by the Federal government at various times, be- 
ginning from 1785, and derived in some cases also from lands appropriated 
originally by the State itself to these objects. Down to 1888, 77,488,192 acres 
had been granted by the United States government for educational purposes. 

3 In the State of Connecticut (population in 1883 about 650,000) the total 
revenue raised by taxation in 1883-81 was $8,524,776 (£1,800,000) , which was 
collected by and for the following authorities and purposes : — 

The State $1,462,328 



Counties 

Towns 

Cities and boroughs 

School districts 

4 Stamp duties were also resor 



1,131,766 

2,808,682 
1,636,957 
1,485,043 

ted to during the Civil War, but at present 



none are levied by the National government. 

VOL. I 2 L 



5U THE STATE GOVERNMENTS part 11 

during the War of Secession. (The sums thus raised in that 
way have, however, been since refunded.) State revenue, on 
the other hand, arises almost wholly from direct taxation, since 
the Federal Constitution forbids the levying of import or ex- 
port duties by a State, except with the consent of Congress, 
and directs the produce of any such duties as Congress may 
permit to be paid into the Federal treasury. The chief tax is 
in every State a property tax, based on a valuation of property, 
and generally of all property, real and personal, within the 
taxing jurisdiction. 

The valuation is made by officials called appraisers or as- 
sessors, appointed by the local communities, though under 
general State laws. 1 It is their duty to put a value on all tax- 
able property ; that is, speaking generally, on all property of 
whatever nature which they can discover or trace within the 
area of their authority. As the contribution, to the revenues 
of the State or county, leviable within that area is proportioned 
to the amount and value of taxable property situate within it, 
the local assessors have, equally with the property owners, 
an obvious motive for valuing on a low scale, for by doing so 
they relieve their community of part of its burden. The State 
accordingly endeavours to check and correct them by creating 
what is called a Board of Equalization, which compares and 
revises the valuations made by the various local officers, with 
the aim of having taxable property in each locality equally 
and fairly valued, and made thereby to bear its due share of 
public burdens. Similarly a county has often an equalization 
board to supervise and adjust the valuations of the towns and 
cities within its limits. However, the existence of such boards 
does not overcome the difficulty of securing a really equal 
valuation, and the honest county or town which puts its prop- 
erty at a fair value suffers by paying more than its share. 
Valuations are generally made at a figure much below the true 
worth of property. In Connecticut, for instance, the law 
directs the market pviee to be the basis, but real estate is 
valued only at from one-third to three-fourths thereof. 2 Indeed 

1 The account in the text does not. of course, claim to bo true in all particu- 
lars lor every State, but only to represent the general Usage. 

* The special commission on taxation In Connecticut in their recent singu- 
larly clear and interesting report (1887) observe:— "One great defect in the 
practical execution of our i ;\ laws consists in inequalities of assessment and 



chap, xliii STATE FINANCE 515 



one hears everywhere in America complaints of inequalities 
arising from the varying scales on which valuers proceed. 

A still more serious evil is the fact that so large a part of 
taxable property escapes taxation. Lands and houses cannot 
be concealed ; cattle and furniture can be discovered by a zeal- 
ous tax officer. But a great part, often far the largest part of 
a rich man's wealth, consists in what the Americans call " in- 
tangible property/' notes, bonds, book debts, and Western 
mortgages. 1 At this it is practically impossible to get, except 
through the declaration of the owner ; and even if the owner 
is required to present his declaration of taxable property upon 
oath, he is apt to omit this kind of property. The Connecticut 
commissioners report that 

"the proportion of these intangible securities to other taxable property has 
steadily declined from year to year. In 1855 it was nearly 10 per cent of 
the whole, in 1865 about 7 J per cent, in 1875 a little over 5 per cent, and in 
1885 about 3| per cent. Yet during the generation covered by these 
statistics the amount of State railroad and municipal bonds, and of West- 
ern mortgage loans has very greatly increased, and our citizens have, in 
every town in the State, invested large sums in them. Why then do so 
few get into the tax list ? The terms of the law are plain, and the pen- 
alties for its infringement are probably as stringent as the people will 
bear. . . . The truth is that no system of tax laws can ever reach directly 
the great mass of intangible property. It is not to be seen, and its pos- 
session, if not voluntarily disclosed, can in most cases be only the subject 
of conjecture. The people also in a free government are accustomed to 
reason for themselves as to the justice and validity of the laws, and too 
apt to give themselves the benefit of the doubt when they have in any way 
the power to construe it for themselves. Such a power is practically given 

valuation. This shows itself especially as between the different towns. . . . 
It is notorious that in few, if any, towns do the assessors value real estate at 
what they think it is fairly worth. On the contrary, they generally first make 
this appraisal of its actual value, and then put it in the list at a certain propor- 
tion of such appraisal, varying from 33J to 75 per cent. Similar reductions are 
made in valuing personal property, though with less uniformity, and so per- 
haps with more injustice " (p. 8). " Household furniture above $500 in value 
constitutes an item of only $9500 in one of our cities, while a neighbouring 
town of not more than half the population returns $12,900 " (p. 16). 

1 The difficulty does not arise with stock or shares even when held in a com- 
pany outside a State, because all States now tax corporations or companies 
within their jurisdiction, and the principle is generally (though not univer- 
sally) adopted, that where stocks in a corporation outside the State have been 
so taxed, they shall not be again taxed in the hand of the holder of the stock, 
who may reside within the State. State laws and tax assessors can in each 
State succeed in reaching the property of the corporation itself. 



516 THE STATE GOVERNMENTS part ii 

in the form of oath used in connection with our tax lists, since it refers 
only to such property of the parties giving them in as is taxable according 
to their best knowledge, remembrance, or belief. The man who does not 
believe that a western farm loan or foreign railroad bond (i.e. bond of a 
company outside the State) ought to be taxed, is too often ready to swear 
that to the best of his belief it is not liable to taxation. ... As the law 
stands, it may be a burden on the conscience of many, but it is a burden 
on the property of few, not because there are few who ought to pay, but 
because there are few who can be made to pay. Bonds and notes held by 
an individual are for the most part concealed from the assessors, nor do 
they in most towns make much effort to ascertain their existence. 1 The 
result is that a few towns, a few estates, and a few persons of a high sense 
of honesty, bear the entire weight of the tax. Such has been the univer- 
sal result of similar laws elsewhere." 

A comparison of the tax lists with the probate records con- 
vinced the commissioners that, whereas in 1884 more than a 
third of the whole personal property assessed in the State of 
Connecticut escaped taxes, the proportion not reached by taxa- 
tion was in 1886 much greater ; and induced them to recom- 
mend that "all the items of intangible property ought to be 
struck out of the tax list." The probate inventories of the 
estates of deceased persons, and the last returns made to the 
tax assessors by those persons, "show, to speak of it mildly, 
few points of contact." Connecticut is a commonwealth in 
most respects above the average. In every part of the country 
one hears exactly the same. 2 The tax returns sent in are rarely 

1 "A person, formerly assessor in one of our leading cities, reported that he 
had made efforts when in office to get this kind of property into the ' grand 
list,' and succeeded during his last two years in finding ont and adding over 
$200,000 of it ; but he adds, 'That may have had something to do with my 
defeat when election came around.' " So in West Virginia when an assessor 
objecting to a merchant's declaration threatened to swear the merchant, the 
latter replied, " If you swear me, I'll vote against you next time." 

2 The West Virginian lax commission, in 1884, says. "At present all taxes 
from invisible property come from a few conspicuously conscientious citizens, 
from widows, executors, and from guardians of the insane and infants; in fact, 
it is a comparatively rare thing to find a shrewd trader who gives in any con- 
siderable amount of notes, stocks, or money. The truth is. things have come 
to such a condition in West Virginia that, as regards paying taxes on this kind 
of property, it is almost as voluntary and is considered pretty much in the same 
light as donations to the neighbourhood church or Sunday school." Reports 
of commissioners in several Other States are to the same effect. See, espe- 
cially, the Report of the Tax Commission of Baltimore, 1886; and the supple- 
mentary Report of one membei of the Maryland Tax Commission, Mr. Richard 
T. Ely, in winch much instructive evidence as to the failure in various States of 
the efforts made to tax Intangible property has been collected and set forth (Bal- 



chap, xliii STATE FINANCE 517 

truthful ; and not only does a very large percentage of property 
escape its lawful burdens, but " the demoralization of the pub- 
lic conscience by the frequent administration of oaths, so often 
taken only to be disregarded, is an evil of the greatest magni- 
tude. Almost any change would seem to be an improvement. 1 " 
There is probably not a State in the Union of which the 
same thing might not be said. In Ohio, for instance, the 
Governor remarks in a special message of April 1887: 

"The great majority of the personal property of this State is not 
returned, but entirely and fraudulently withheld from taxation. The 
idea seems largely to prevail that there is injustice and inequality in tax- 
ation, and that there is no harm in cheating the State, although to do so 
a false return must be made and perjury committed. This offence 
against the State and good morals is too frequently committed by men of 
wealth and reputed high character, and of corresponding position in 
society." 

In New York there was a shrinkage in the valuation of 
personalty from 1871 to 1884 of $107,184,371, and in 1888 
personalty paid only 10 per cent, realty 90 per cent, of the 
State taxation. In California personal property was assessed 
at $220,000,000 in 1872, and at $164,000,000 in 1887, while in 
the same fifteen years real estate rose from $417,000,000 to 
$791,000,000. 

I have dwelt upon these facts, not only because they 
illustrate the difficulties inherent in a property tax, difficulties 

timore, 1888) . A Boston commission reported, in 1891, in favour of taxing real 
estate only ; arguing that under the laws of Massachusetts taxing personalty, 
much property was really twice taxed. 

1 Judge Foster, in the ease of Kirtland v. Hotchkiss, 42 Conn. Rep., p. 449. 
So Mr. David A. Wells, in his report as Special Tax Commissioner to the New 
York Legislature, says: " Oaths as a matter of restraint or as a guarantee of 
truth in respect to official statements have in great measure ceased to be 
effectual; or in other words, perjury, direct or constructive, has become so 
common as to almost cease to occasion notice. This is the all but unanimous 
testimony of officials who have of late had extensive experience in the admin- 
istration of both the national and State revenue laws." 

Professor E. A. Seligmann, in a valuable article in the Political Science 
Quarterly for March 1890, sums up the case against a property tax as follows: 

" The property tax of to-day, because of its attempt to tax intangible as 
well as tangible things, sins against the cardinal rules of uniformity, of 
equality, and of universality of taxation. It puts a premium on dishonesty and 
debauches the public conscience. It reduces deception to a system and makes 
a science of knavery. It presses hardest on those least able to pay. It imposes 
double taxation on one man and grants entire immunity to the next." 



518 THE STATE GOVERNMENTS part ii 

of course greater where such, independent taxing authorities 
as the several States are close together, but also because they 
help to explain the occasional bitterness of feeling among the 
American farmers as well as the masses against capitalists, 
much of whose accumulated wealth escapes taxation, while 
the farmer who owns his land, as well as the working man 
who puts his savings into the house he lives in, is assessed 
and taxed upon this visible property. We may, in fact, say 
of most States, that under the present system of taxation the 
larger is the city the smaller is the proportion of personalty 
reached by taxation (since concealment is easier in large com- 
munities), and the richer a man is the smaller in proportion 
to his property is the contribution he pays to the State. 1 Add 
to this that the rich man bears less, in proportion to his 
income, of the burden of indirect taxation, since the protective 
tariff raises the price not merely of luxuries but of all com- 
modities, except some kinds of food. 2 

1 Iu Iowa the State Auditor reported some years ago that "the class of 
property that escapes taxation most is that which pays the largest dividend" ; 
and in Kentucky that "the property of the small owner is as a rule valued 
by a far higher standard than that of his wealthy neighbour." 

2 An experienced Massachusetts publicist writes to me apropos of the 
passage in the text: " If one State compels a man to make a full declaration 
of his personal property for taxation and another does not there will be a 
tendency for capital to flow from the former to the latter. In Vermont, for 
instance, a law has been passed requiring every person under penalty to make 
sworn returns of his moveable property, and the result is that capital seems to 
be leaving that State. 

" In New York the law taxes personal property, but if a person makes no 
return the assessors are instructed to ' doom ' him according to the best of their 
knowledge and belief; and the amount becomes a matter of ' trade.' Returns 
are practically made only by trustees and corporations, not by capitalists. It 
is a case of bad law tempered by violation. 

" In Massachusetts the practice in each town depends mainly upon the 
assessors. In Boston the chief office haying resolved to let no one escape, has 
for twenty years gone on increasing the assessment each year till the victim 
makes a return. At first, men had some scruple about leaving the city before 
1st May (the date of residence when taxes arc assessed), but these were soon 
overcome, and now nearly all the capitalists have country places where they 
retire at a still inclement season, and are received with open arms by the local 
assessors, who accept just what they choose to pay, while their political 
influence, their taxes, and their public donations are lost to the city. Occa- 
sionally the assessors in a country town take it into their heads to apply the 
screw after the fashion of the city authority, and then there is a fine turmoil. 
As the rich men generally live In one quarter of the (country) town, the next 
step is to apply to the legislature to get t lit- town divided, and the vicinity of 
Boston is thus being gradually cut up into small pieces." 



chap, xliii STATE FINANCE 519 

Besides the property tax, which is the main source of 
revenue, the States often levy taxes on particular trades or 
occupations, 1 sometimes in the form of a licence tax, taxes on 
franchises enjoyed by a corporation, taxes on -railroad stock, 
or (in a few States) taxes on collateral inheritances. Com- 
paratively little resort has hitherto been had to the so-called 
"death-duties," i.e. probate, legacy, and succession duties, nor 
is much, use made of an income tax. Five States, however, 
authorize it. As regards poll taxes there is much variety of 
practice. Some State Constitutions (e.g. Ohio) forbid such an 
impost, as "grievous and oppressive"; others direct it to 
be imposed, or (e.g. North Dakota) allow the legislature to 
impose it, while about one half do not mention it. Where it 
exists, there is sometimes a direction that it shall be applied 
to schools or some other specified useful purpose, such as poor 
relief, so as to give the poor, who perhaps pay no other direct 
tax, a sense of their duty to contribute to public objects, and 
especially to those in whose benefits they directly share. The 
amount of a poll tax is always small, $ 1 or $2: sometimes (as 
in Tennessee) the payment of it is made a pre-requisite to the 
exercise of the electoral franchise. It is, I think, never 
imposed on women or minors. 

In some States " foreign " corporations, i.e. those chartered 
by or domiciled in another State, are taxed more heavily than 
domestic corporations. New Hampshire, by taxing " foreign " 
insurance companies, succeeded in driving them out of its limits. 

I have found no instance of a progressive inheritance duty, 
or of a progressive income tax such as some of the Swiss can- 

1 North Carolina empowers its legislature to tax all trades, professions, 
and franchises. Arkansas in 1868 (Article x. § 17) directed its general 
assembly to "tax all privileges, pursuits, and occupations that are of no real 
use to society," adding that all others shall be exempt. But having apparently 
found it hard to determine which occupations are useless, she dropped the 
direction in her Constitution of 1874, and now merely empowers the taxation 
of "hawkers, pedlers, ferries, exhibitions, and privileges." 

The persons or things on whom licence taxes or occupation taxes may be 
imposed are the following, some being mentioned in one State Constitution, 
some in another — Pedlers, hawkers, auctioneers, brokers, pawnbrokers, 
merchants, commission merchants, "persons selling by sample," showmen, 
jugglers, innkeepers, toll bridges, ferries, telegraphs, express agents (i.e. 
parcels' delivery), grocery keepers, liquor dealers, insurance, vendors of 
patents, persons or corporations using franchises or privileges, banks, rail- 
roads, destructive domestic animals, dealers in " options " or " futures." 



520 THE STATE GOVERNMENTS part ii 

tons have imposed. California, however, in her Constitution 
of 1879 has attempted to tax the same property twice over. 

There is always a desire to hit incorporated companies, espe- 
cially banks and railroads. 1 The newer Constitutions often 
direct the legislature to see that such undertakings are duly 
taxed, sometimes forbidding it ever to deprive itself of the 
power of taxing any corporation, doubtless from the fear that 
these powerful bodies may purchase from a pliant legislature 
exemption from civic burdens. The methods, however, of tax- 
ing corporations vary greatly from State to State, and are at 
present in a wholly chaotic condition. 

III. In most States, certain descriptions of property are 
exempted from taxation, as for instance, the buildings or other 
property of the State, or of any local community, burying 
grounds, schools and universities, educational, charitable, scien- 
tific, literary, or agricultural institutions or societies, public 
libraries, churches and other buildings or property used for 
religious purposes, cemeteries, household furniture, farming 
implements, deposits in savings banks. Often too it is provided 
that the owner of personal property below a certain figure shall 
not pay taxes on it, and occasionally ministers of religion are 
allowed a certain sum (as for instance in Xew York, $1500) 
free from taxation. 

No State can tax any bonds, debt certificates, or other 
securities issued by, or under the authority of, the Federal 
government, including the circulating notes commonly called 
" greenbacks." This has been held to be the law on the con- 
struction of the Federal Constitution, and has been so declared 
in a statute of Congress. Many intricate questions have arisen 
on this doctrine ; which, moreover, introduces an element of 
difficulty into State taxation, because persons desiring to escape 
taxation are apt to turn their property into these exempted 
forms just before they make their tax returns. 

IV. Some of the State taxes, such, for instance, as licence 
taxes, or a tax on corporations, are directly levied by and paid 
to the State officials. But others, and particularly the property 
tax, which forms so large a source of revenue, arc collected 

1 As to banks, see Ohio Constitution of 1851, Article xii. § 3, and an article 
on the taxation of corporations by Mr. E. A. Seligmann in Political Science 

Quarterly for June 1890. Banks were an object of as much popular dislike 
fifty years a^o as railroads are now. 



chap, xliii STATE FINANCE 521 

by the local authorities. The State having determined what 
income it needs, apportions this sum among the counties, or in 
New England, sometimes directly among the towns, in propor- 
tion to their paying capacity, that is, to the value of the prop- 
erty situate within them. 1 So similarly the counties apportion 
not only what they have to pay to the State, but also the sum 
they have to raise for county purposes, among the cities and 
townships within their area, in proportion to the value of their 
taxable property. Thus, when the township or city author- 
ities assess and collect taxes from the individual citizen, they 
usually collect at one and the same time three distinct sets of 
taxes, the State tax, the county tax, and the city or town- 
ship tax. Eetaining the latter for local purposes, 2 they hand 
on the two former to the county authorities, who in turn retain 
the county tax, handing on to the State what it requires. 
Thus trouble and expense are saved in the process of collect- 
ing, and the citizen sees in one tax-paper all he has to pay. 

Y. Some States, taught by their sad experience of reckless 
legislatures, limit by their Constitutions the amount of taxation 
which may be raised for State purposes in any one year. Thus 
Texas in 1876 forbade the State property tax to exceed one half 
per cent on the valuation (exclusive of the sum needed to pay 
interest on the State debt), and has since reduced the per- 
centage to .35. 3 North Dakota (1889) fixes .4, Montana .3, as 
the percentage. A similar provision exists in Missouri, and 
in some other Southern or Western States. We shall see 
presently that this method of restriction has been more exten- 
sively applied to cities and other subordinate communities. 
Sometimes we find directions that no greater revenue shall be 
raised than the current needs of the State require, a rule 
which Congress would have done well to observe, seeing that 
a surplus revenue invites extravagant and reckless expendi- 
ture and gives opportunity for legislative jobbery. 4 

1 As ascertained by the assessors and board of equalization. 

2 Sometimes, however, the town or township in its corporate capacity pays 
the State its share of the State tax, instead of collecting it specifically from 
individual citizens. 

3 In spite of this Texas had in March 1888 a surplus of $2,000,000 in her State 
treasury, so that the Governor was obliged to summon the legislature in extra 
session to dispose of this surplus and prevent the growth of another. 

4 Sir T. More in his Utopia mentions with approval a law of the Macarians 
forbidding the king to have ever more than £1000 in the public treasury. 



522 THE STATE GOVERNMENTS part ii 

It may be thought that the self-interest of the people is suffi- 
cient to secure economy and limit taxation. But, apart from 
the danger of a corrupt legislature, it is often remarked that as 
in many States a large proportion of the voters do not pay 
State taxes, the power of imposing burdens lies largely in the 
hands of persons who have no direct interest, and suppose 
themselves to have no interest at all, in keeping down taxes 
which they do not pay. So far, however, as State finance is 
concerned, this has been no serious source of mischief, and 
more must be attributed to the absence of efficient control 
over expenditure, and to the fact that (as in Congress) the 
committee which reports on appropriations of the revenue is 
distinct from that which deals with the raising of revenue by 
taxation. 

Another illustration of the tendency to restrict the improvi- 
dence of representatives is furnished by the prohibitions in 
many Constitutions to pass bills appropriating moneys to any 
private individual or corporation, or to authorize the payment 
of claims against the State arising under any contract not 
strictly and legally binding, or to release the claims which the 
State may have against railroads or other corporations. One 
feels, in reading these multiform provisions, as if the legis- 
lature was a rabbit seeking to issue from its burrow to ravage 
the crops wherever it could, and the people of the State were 
obliged to close every exit, because they could not otherwise 
restrain its inveterate propensity to mischief. 

VI. Nothing in the financial system of the States better 
deserves attention thau the history of the State debts, their 
portentous growth, and the efforts made, when the people had 
taken fright, to reduce their amount, and to set limits to them 
in the future. 

Sixty to seventy years ago, when those rich and ample West- 
ern lands which now form the States of Ohio, Indiana. Illinois, 
Michigan, and Missouri were being opened up and settled, and 
again forty years ago, when the railway system was in the 
first freshness of its marvellous extension, and was filling up 
the lands along the Mississippi at an increasingly rapid rate, 
every one was full of hope ; and States, counties, and cities, 
not less than individual men, threw themselves eagerly into 
the task of developing the resources which lay around them. 



chap, xliii STATE FINANCE 523 

The States, as well as these minor communities, set to work to 
make roads and canals and railways ; they promoted or took 
stock in trading companies, they started or subsidized banks, 
they embarked in, or pledged their credit for, a hundred enter- 
prises which they were ill-fitted to conduct or supervise. Some 
undertakings failed lamentably, while in others the profits 
were grasped by private speculators, and the burden left with 
the public body. State indebtedness, which in 1825 (when 
there were twenty-four States) stood at an aggregate over the 
whole Union of $12,790,728 (£2,500,000), had in 1842 reached 
$203,777,916 1 (£40,000,000), in 1870 $352,866,898 (£70,000,- 
000). 

A part of the increase between the latter years was due to 
loans contracted for the raising and equipping of troops by 
many Northern States to serve in the Civil War, the intention 
being to obtain ultimate reimbursement from the national 
treasury. There was also a good deal, in the way of executed 
works, to show for the money borrowed and expended, and the 
States (in 1870 thirty-seven in number) had grown vastly in 
taxable property. Nevertheless the huge and increasing total 
startled the people, and, as everybody knows, some States repu- 
diated their debts. The diminution in the total indebtedness 
of 1880, which stood at $290,326,643, and was the indebted- 
ness of thirty-eight States and three Territories, is partly due 
to this repudiation. In 1890 the total (now of forty-four 
States and two Territories) stood at $223,107,883. 2 Even after 
the growth of State debts had been checked (in the way to be 
presently mentioned), minor communities, towns, counties, but 
above all, cities trod in the same path, the old temptations 
recurring, and the risks seeming smaller because a munici- 
pality had a more direct and close interest than a State in 
seeing that its money or credit was well applied. Municipal 
indebtedness has advanced, especially in the larger cities, at a 
dangerously swift rate. Of the State and county debt much 
the largest part had been incurred for, or in connection with, 
so-called "internal improvements"; but of the city debt, 

1 In 1838 it was estimated that of the total debt of the States, then calcu- 
lated at $170,800,000 (say £35,000,000), $60,200,000 had been incurred for 
canals, $42,800,000 for railroads, and $52,600,000 for banking. 

2 I take these figures (which are minus sinking fund) from the bulletin of 
the census of 1890. 



524 THE STATE GOVERNMENTS part ii 

though, a part was due to the bounties given to volunteers in 
the Civil War, much must be set down to extremely lax and 
wasteful administration, and much more to mere stealing, prac- 
tised by methods to be hereafter explained, but facilitated by 
the habit of subsidizing, or taking shares in, corporate enter- 
prises which had excited the hopes of the citizens. 

VII. The disease spread till it terrified the patient, and a 
remedy was found in the insertion in the Constitutions of pro- 
visions limiting the borrowing powers of State legislatures. 
Fortunately the evil had been perceived in time to enable the 
newest States to profit by the experience of their predecessors. 
For the last thirty-five years, whenever a State has enacted a 
Constitution, it has inserted sections restricting the borrowing 
powers of States and local bodies, and often also providing 
for the discharge of existing liabilities. Not only is the pass- 
ing of bills for raising a State loan surrounded with special 
safeguards, such as the requirement of a two-thirds majority 
in each house of the legislature ; not only is there a prohibi- 
tion ever to borrow money for, or even to undertake, interoal 
improvements (a fertile source of jobbery and waste, as the 
experience of Congress shows) ; not only is there almost inva- 
riably a provision that whenever a debt is contracted the same 
Act shall create a sinking fund for paying it off within a few 
years, but in most Constitutions the total amount of the debt 
is limited, and limited to a sum beautifully small in proportion 
to the population and resources of the State. 1 Thus Wisconsin 
fixes its maximum at $ 200,000 (£40,000) ; Minnesota and Iowa 
at $ 250,000, Ohio at $750,000; Wyoming at one and Idaho at 
one and one-half per cent of the assessed value of taxable 
property, Nebraska and Montana at $100,000 ; prudent Oregon 
at $50,000 ; and the great and wealthy State of Pennsylvania, 
with a population now exceeding 5,300,000 (Constitution of 
1873, Art. ix. § 4), at $1,000,000. 2 

1 Debts incurred for the purpose of suppressing insurrection or repelling 
invasion are excepted from these limitations. 

2 New York (Constitution of 1846, Art. vii. §§ 10-12) also names a million of 
dollars as the maximum, hut permits laws to be passed raising loans for " some 
single work or object," provided that a tax is at the same time enacted suffi- 
cient to pay off this debt in eighteen years ; and that any such law has beeu 
directly submitted to the people and approved by them at an election. Simi- 
lar provisions permitting increase by special popular vote are frequent in 
recent Constitutions. 



chap, xliii STATE FINANCE 525 

In four-fifths of the States, including all those with recent 
Constitutions, the legislature is forbidden to " give or lend the 
credit of the State in aid of any person, association, or corpo- 
ration, whether municipal or other, or to pledge the credit of 
the State in any manner whatsoever for the payment of the 
liabilities present or prospective of any individual association, 
municipal, or other corporation," 1 as also to take stock in a 
corporation, or otherwise embark in any gainful enterprise. 
Many Constitutions also forbid the assumption by the State 
of the debts of any individual or municipal corporation. 

The care of the people for their financial freedom and safety 
extends even to local bodies. Many of the recent Constitu- 
tions limit, or direct the legislature to limit, the borrowing 
powers of counties, cities, or towns, sometimes even of incor- 
porated school districts, to a sum not exceeding a certain per- 
centage on the assessed value of the taxable property within 
the area in question. This percentage is usually five per cent 
(e.g. Illinois, Constit. of 1870, Art. ix. § 12), sometimes (e.g. 
Pennsylvania, Constit. of 1873, Art. ix. § 8) seven per cent; 
New York (Amend, of 1884), ten per cent; Wyoming (except 
for water or sewerage works) two per cent. Sometimes also 
the amount of the tax leviable by a local authority in any year 
is restricted to a definite sum — for instance, to one half per 
cent on the valuation. 2 And in all the States but seven, cities, 
counties, or other local incorporated authorities are forbidden 
to pledge their credit for, or undertake the liabilities of, or take 
stock in, or otherwise give aid to, any undertaking or company. 
Sometimes this prohibition is absolute ; sometimes it is made 
subject to certain conditions, and may be avoided by their 
observance. For instance, there are States in which the peo- 
ple of a city can, by special vote, carried by a two-thirds ma- 
jority, or, a three-fifths majority, or (in Colorado) by a bare 
majority of the tax-payers, authorize the contracting of a debt 
which the municipality could not incur by its ordinary organs 
of government. Sometimes there is a direction that any mu- 
nicipality creating a debt must at the same time provide for 

1 Constitution of Missouri of 1875 (Art. iv. § 45), a Constitution whose pro- 
visions on financial matters and restrictions on the legislature are copious and 
instructive. Similar words occur in nearly all Western and Southern, as well 
as in some of the more recent Eastern Constitutions. 

2 See the elaborate provisions of the Constitution of Missouri of 1875. 



526 THE STATE GOVERNMENTS part ii 

its extinction by a sinking fund. Sometimes the restrictions 
imposed apply only to a particular class of undertakings — e.g. 
banks or railroads. The differences between State and State 
are endless ; but everywhere the tendency is to make the pro- 
tection against local indebtedness and municipal extravagance 
more and more strict ; nor will any one who knows these local 
authorities, and the temptations, both good and bad, to which 
they are exposed, complain of the strictness. 1 

Cases, of course, occur in which a restriction on the taxing 
power or borrowing power of a municipality is found incon- 
venient, because a costly public improvement is rendered more 
costly if it has to be done piecemeal. The corporation of 
Brooklyn was thus recently prevented from making all at 
once a great street which would have been a boon to the city, 
and will have to spend more money in buying up the land for 
it bit by bit. But the evils which have followed in America 
from the immixture both of States and of cities in enterprises 
of a public nature, and the abuses incident to an unlimited 
power of undertaking improvements, have been so great as to 
make people willing to bear with the occasional inconven- 
iences which are inseparable from restriction. 

"A catalogue of these evils would include the squandering of the 
public domain ; the enrichment of schemers whose policy it has been 
first to obtain all they can by fair promises, and then avoid, as far and 
as long as possible, the fulfilment of the promises ; the corruption of 
legislation ; the loss of State credit ; great public debts recklessly con- 
tracted for ; moneys often recklessly expended ; public discontent, be- 
cause the enterprises fostered from the public treasury, and on the 
pretence of public benefit, are not believed to be managed in the public 
interest ; and finally, great financial panic, collapse, and disaster." ' 2 

The provisions above described have had the effect of 
steadily reducing the amount of State debts, although the 
wealth of the country makes rapid strides. This reduction 
was between 1870 and 1880, about. 25 per cent in the ease of 
State debts, and in that of county, town, and school district 
debts about 8 per cent. In the decade ending with 1890 the 

1 In a Note to Chapter LT. post, placed at tbe end of this volume. I have 
given some specimens of the constitutional provisions which restrict the bor- 
rowing powers of local authorities. 

3 Coolcy, Constit. Limit, p. 266, 



chap, xliii STATE FINANCE 527 

reduction in State debts was $67,218,760 (nearly half of this, 
however, due to scaling down of debts of Southern States) ; 
but county debts rose from $124,105,027 to $145,048,045, and 
the school district debts from $17,580,682 to $36,701,948. 
In cities there was, within the decade 1870-80, not only no 
reduction, but an increase of over 100 per cent, possibly as 
much as 130 per cent. In 1890 the total debt, less sinking 
fund, of municipalities exceeding 4000 inhabitants is returned 
at $646,507,644 against $623,784,262 in 1880, but owing to 
the growth of population the amount per capita which was 
$45.06 in 1880, had fallen in 1890 to $31.69. 1 

This striking difference between the cities and the States 
may be explained in several ways. One is that cities cannot 
repudiate, while sovereign States can and do. 2 Another 
may be found in the later introduction into State Constitu- 
tions of restrictions on the borrowing powers of municipalities. 
But the chief cause is to be found in the conditions of the 
government of great cities, where the wealth of the commu- 
nity is largest, and is also most at the disposal of a multitude 
of ignorant voters. Several of the greatest cities lie in States 
which did not till recently, or have not even now, imposed 
adequate restrictions on the borrowing power of city councils. 
Now city councils, as we shall see presently, are not only in- 
capable administrators, but are prone to such public improve- 
ments as present opportunities for speculation, for jobbery, 
and even for wholesale embezzlement. 

1 1 take these figures from the Bulletin No. 176 of the census of 1890. 

2 In some parts of New England the city, town, or other municipal debt is 
also the personal debt of every inhabitant, and is therefore an excellent 
security. 



CHAPTER XLIV 

THE WORKING OF STATE GOVERNMENTS 

The difficulty I have already remarked of explaining to 
Europeans the nature of an American State, viz. that there is 
in Europe nothing similar to it, recurs when we come to in- 
quire how the organs of government which have been described 
play into one another in practice. To say that a State is 
something lower than the nation but greater than a municipal- 
ity, is to say what is obvious, but not instructive ; for the 
peculiarity of the State is that it combines some of the feat- 
ures which are to Europeans characteristic of a nation and 
a nation only, with others that belong to a municipality. 

The State seems great or small according to the point of 
view from which one regards it. It is vast if one regards the 
sphere of its action and the completeness of its control in 
that sphere, which includes the maintenance of law and 
order, nearly the whole field of civil and criminal jurispru- 
dence, the supervision of all local governments, an unlimited 
power of taxation. But if we ask, Who are the persons 
that manage this great machine of government ; how much 
interest do the citizens take in it; how much reverence do 
they feel for it ? the ample proportions we had admired begin 
to dwindle, for the persons turn out to be insignificant, and 
the interest of the people to have steadily declined. The 
powers of State authorities are powers like those of a Euro- 
pean parliament; but they are wielded by men most of whom 
are less distinguished and less respected by their fellows than 
are those who fill the city councils of Manchester or Cologne. 
Several States exceed in area and population some ancient 
European monarchies. But their annals may not have been 
illumined by a single striking event or brilliant personality. 

A further difficulty in describing how a State government 

528 



chaf. xliv WORKING OF STATE GOVERNMENTS 529 

works arises from the endless differences of detail between the 
several States. The organic frame of government is similar 
in all ; but its functional activities vary according to the 
temper and habits, the ideas, education, and traditions of the 
inhabitants of the State. A European naturally says, " Select 
a typical State, and describe that to us." But there is no 
such thing as a typical State. Massachusetts or Connecticut 
is a fair sample of New England, Minnesota or Iowa of the 
North-West; Georgia or Alabama shows the evils, accom- 
panied no doubt by great recuperative power, that still vex 
the South ; New York and Illinois the contrast between the 
tendencies of an ignorant city mob and the steady-going 
farmers of the rural counties. But to take any one of these 
States as a type, asking the reader to assume what is said of 
it to apply equally to the other forty-three commonwealths, 
would land us in inextricable confusions. I must therefore 
be content to speak quite generally, emphasizing those points 
in which the colour and tendencies of State governments are 
much the same over the whole Union, and begging the Euro- 
pean reader to remember that illustrations drawn, as they 
must be drawn, from some particular State, will not neces- 
sarily be true of every other State government, because its 
life may go on under different conditions. 

The State governments, as has been observed already, bear 
a family likeness to the National or Federal government, a 
likeness due not only to the fact that the latter was largely 
modelled after the systems of the old thirteen States, but 
also to the influence which the Federal Constitution has ex- 
erted ever since 1789 on those who have been drafting or 
amending State Constitutions. Thus the Federal Constitution 
has been both child and parent. Where the State Constitu- 
tions differ from the Federal, they invariably differ in being 
more democratic. It still expresses the doctrines of 1787. 
They express the views of later days, when democratic ideas 
have been more rampant, and men less cautious than the 
sages of the Philadelphia Convention have given legal form 
to popular beliefs. This difference, which appears not only 
in the mode of appointing judges, but in the shorter terms 
which the States allow to their officials and senators, comes 
out most clearly in the relations established between the 

VOL. I 2 M 



530 THE STATE GOVERNMENTS part ii 

legislative and the executive powers. The National executive, 
though disjoined from the legislature in a way strange to 
Europeans, is nevertheless all of a piece. The President is 
supreme ; his ministers are his subordinates, chosen by him 
from among his political associates. They act under his 
orders; he is responsible for their conduct. But in the 
States there is nothing even distantly resembling a cabinet. 
The chief executive officials are directly elected by the people. 
They hold by a title independent of the State governor. They 
are not, except so far as some special statute may provide, 
subject to his directions, and he is not responsible for their 
conduct, since he cannot control it. As the governor need 
not belong to the party for the time being dominant in the 
legislature, so the other State officials need not be of the same 
party as the governor. 1 They may even have been elected at 
a different time, or for a longer period. 

A European, who studies the mechanism of State govern- 
ment — very few Europeans so far having studied it — is at 
first puzzled by a system which contradicts his preconceived 
notions. " How," he asks, " can such machinery work ? One 
can understand the scheme under which a legislature rules 
through officers whom it has, whether legally or practically, 
chosen and keeps in power. One can even understand a 
scheme in which the executive, while independent of the leg- 
islature, consists of persons acting in unison, under a head 
directly responsible to the people. But will not a scheme, in 
which the executive officers are all independent of one another, 
yet not subject to the legislature, want every condition needed 
for harmonious and efficient action ? They obey nobody. 
They are responsible to nobody, except a people which only 
exists in concrete activity for one election day every two 
years, when it is dropping papers into the ballot-box. Such 
a system seems the negation of a system, and more akin to 
chaos." 

In his attempts to penetrate this mystery, our European 
receives little help from his usually helpful American friends, 
simply because they do not understand his difficulty. Light 
dawns on him when he perceives that the executive business 

1 Thus Massachusetts elected in L891 (ami again in 1892) a Democratic gov- 
ernor, hut her other State offioials from the Republican party. 



chap, xliv WORKING OF STATE GOVERNMENTS 531 

of a State is such, as not to need any policy, in the European 
sense, and therefore no harmony of view or purpose among 
those who manage it. Everything in the nature of State 
policy belongs to the legislature, and to the legislature alone. 

Compare the Federal President with the State Governor. 
The former has foreign policy to deal with, the latter has none. 
The former has a vast patronage, the latter has scarcely 
any. The former has the command of the army and navy, the 
latter has only the militia, insignificant in ordinary times. 
The former has a post-office, but there is no State postal-ser- 
vice. Little remains to the Governor except his veto, which 
is not so much an executive as a legislative function ; the duty 
of maintaining order, which becomes important only when 
insurrection or riot breaks out; and the almost mechanical 
function of representing the State for various matters of rou- 
tine, such as demanding from other States the extradition of 
offenders, issuing writs for the election of congressmen or of 
the State legislature, receiving the reports of the various State 
officials. These officials, even the highest of them who corre- 
spond to the cabinet ministers in the National government, are 
either mere clerks, performing work, such as that of receiving 
and paying out State moneys, strictly defined by statute, and 
usually checked by other officials, or else are in the nature of 
commissioners of inquiry, who may inspect and report, but can 
take no independent action of importance. Policy does not lie 
within their province ; even in executive details their discre- 
tion is confined within narrow limits. They have, no doubt, 
from the governor downwards, opportunities for jobbing and 
malversation ; but even the less scrupulous are restrained from 
using these opportunities by the fear of some investigating 
committee of the legislature, with possible impeachment or 
criminal prosecution as a consequence of its report. Holding 
for terms which seldom exceed two or three years, they feel 
the insecurity of their position ; but the desire to earn re- 
election by the able and conscientious discharge of their func- 
tions, is a less effective motive than it would be if the practice 
of re-electing competent men were more frequent. Unfortu- 
nately here, as in Congress, the tradition of many States is, that 
when a man has enjoyed an office, however well he may have 
served the public, some one else ought to have the next turn. 



532 THE STATE GOVERNMENTS part ii 

The reason, therefore, why the system I have sketched rubs 
along in the several States is, that the executive has little to 
do, and comparatively small sums to handle. The further 
reason why it has so little to do is two-fold. Local govern- 
ment is so fully developed that many functions, which in 
Europe would devolve on a central authority, are in all Amer- 
ican States left to the county, or the city, or the township, or 
the school district. These minor divisions narrow the province 
of the State, just as the State narrows the province of the cen- 
tral government. And the other reason is, that legislation has 
in the several States pushed itself to the farthest limits, and 
so encroached on subjects which European legislatures would 
leave to the executive, that executive discretion is extinct, and 
the officers are the mere hands of the legislative brain, which 
directs them by statutes drawn with extreme minuteness, care- 
fully specifies the purposes to which each money grant is to 
be applied, and supervises them by inquisitorial committees. 

It is a natural consequence of these arrangements that State 
office carries little either of dignity or of power. A place is 
valued chiefly for its salary, or for such opportunities of oblig- 
ing friends or securing commissions on contracts as it may pre- 
sent though in the greatest States the post of attorney-general 
or comptroller is often sought by able men. A State Governor, 
however, is not yet a nonentity. In more than one State a 
sort of perfume from the old days lingers round the office, as 
in Massachusetts, where the traditions of last century were 
renewed by the eminent man who occupied the chair of the 
commonwealth during the War of Secession and did much to 
stimulate and direct the patriotism of its citizens. Though no 
one would nowadays, like Mr. Jay in 1795, exchange the chief 
justiceship of the United States for the governorship of his 
State, a Cabinet minister will sometimes, as Mr. Folger did a 
few years ago, seek to quit his post in order to obtain the gov- 
ernorship of a great State like New York. In all States, the 
Governor, as the highest official and the depositary of State 
authority, may at any moment become the pivot on whose 
action public order turns. In the Pennsylvania riots of 1877 
it was the accidental absence of the Governor on a tour in the 
West which enabled the forces of sedition to gather strength. 
During the more recent disturbances which large strikes, espe- 



chap, xliv WORKING OF STATE GOVERNMENTS 533 

cially among railway employes, have caused in the West, the 
prompt action of a Governor has preserved or restored tran- 
quillity in more than one State ; while the indecision of the 
Governor of an adjoining one has emboldened strikers to stop 
traffic, or to molest workmen who had been hired to replace 
them. So in a commercial crisis, like that which swept over 
the Union in 1837, when the citizens are panic-stricken and the 
legislature hesitates, much may depend on the initiative of the 
Governor, to whom the eyes of the people naturally turn. His 
right of suggesting legislative remedies, usually neglected, then 
becomes significant, and may abridge or increase the difficulties 
of the community. 

It is not, however, as an executive magistrate that a State 
Governor usually makes or mars a reputation, but in his quasi- 
legislative capacity of agreeing to or vetoing bills passed by 
the legislature. The merit of a Governor is usually tested by 
the number and the boldness of his vetoes ; and a European 
enjoys, as I did in the State of New York in 1870, the odd 
spectacle of a Governor appealing to the people for re-election 
on the ground that he had defeated in many and important 
instances the will of their representatives solemnly expressed 
in the votes of both Houses. That such appeals should be 
made, and often made successfully, is due not only to the dis- 
trust which the people entertain of their legislatures, but also, 
to their honour be it said, to the respect of the people for 
courage. They like above all things a strong man ; just as 
English constituencies prefer a candidate who refuses to 
swallow pledges or be dictated to by cliques. 

This view of the Governor as a check on the legislature 
explains why the Americans think it rather a gain than an 
injury to the State that he should belong to the party which is 
for the time being in a minority in the legislature. How the 
phenomenon occurs may be seen by noting the different 
methods of choice employed. The Governor is chosen by a 
mass vote of all citizens over the State. The representatives 
are chosen by the same voters, but in districts. Thus one 
party may have a majority on a gross poll of the whole State, 
but may find itself in a minority in the larger number of elec- 
toral districts. This happens in New York State, on an average, 
in two years out of every three. The mass vote shows a dem- 



534 THE STATE GOVERNMENTS part ii 

ocratic majority, because the Democrats are overwhelmingly 
strong in New York City, and some other great centres of 
population. But in the rural districts and most of the smaller 
towns the Republican party commands a majority sufficient to 
enable them to carry most districts. Hence, while the Gov- 
ernor is usually a Democrat, the legislature is often Repub- 
lican. Little trouble need be feared from the opposition of 
the two powers, because such issues as divide the national 
parties have scarce any bearing on State affairs. Some good 
may be hoped, because a Governor of the other party is more 
likely to check or show up the misdeeds of a hostile Senate or 
Assembly than one who, belonging to the group of men which 
guides the legislature, has a motive for working with them, 
and may expect to share any gains they can amass. 1 

Thus we are led back to the legislature, which is so much 
the strongest force in the several States that we may almost 
call it the Government and ignore all other authorities. Let 
us see how it gets on without that guidance which an executive 
ministry supplies to the Chambers of every free European 
country. 

As the frame of a State government generally resembles the 
National government, so a State legislature resembles Congress. 
In most States, it exaggerates the characteristic defects of 
Congress. It has fewer able and high-minded men among its 
members. It has less of recognized leadership. It is sur- 
rounded by temptations relatively greater. It is guarded by 
a less watchful and less interested public opinion. But before 
we inquire what sort of men fill the legislative halls, let us ask 
what kinds of business draw them there. 

The matter of State legislation may be classified under three 
heads : 

I. Ordinary private law, i.e. contracts, torts, inheritance, 
family relations, offences, civil and criminal procedure. 

1 Sometimes, however, inconvenience arises from the hostility of the State 
Senate and the Governor. Quite recently the Senate of New York persistently 
refused to confirm the nominations made to certain offices by the Governor, 
with the effect of securing the retention in office long beyond their legal term 
of several officials, these old officials holding on and drawing their salaries 
because no new men had been duly appointed to till their places. The Senate 
was thought to have behaved ill ; but the Governor was not trusted and neither 
exerted nor deserved to exert any moral authority. 



chap, xliv WORKING OF STATE GOVERNMENTS 535 

II. Administrative law, including the regulation of munici- 
pal and rural local government, public works, education, the 
liquor traffic, vaccination, adulteration, charitable and penal 
establishments, the inspection of mines or manufactories, to- 
gether with the general law of corporations, of railroads, and 
of labour, together also with taxation, both State and local, 
and the management of the public debt. 

III. Measures of a local and special nature, such as are 
called in England " private bills," i.e. bills for chartering and 
incorporating gas, water, canal, tramway, or railway companies, 
or for conferring franchises in the nature of monopolies or 
privileges upon such bodies, or for altering their constitutions, 
for incorporating cities and minor communities and regulating 
their affairs. 

Comparing these three classes of business, between the first 
and second of which it is no doubt hard to draw a sharp line, 
we shall find that bills of the second class are more numerous 
than those of the first, bills of the third more numerous than 
those of the other two put together. Ordinary private law, 
the law which guides or secures us in the every day relations 
of life, and upon which nine-tenths of the suits between man 
and man are founded, is not greatly changed from year to year 
in the American States. Many Western, and a few Eastern 
States have made bold experiments in the field of divorce, others 
have added new crimes to the statute-book and amended their 
legal procedure. But commercial law, as well as the law of 
property and civil rights in general, remains tolerably stable. 
People are satisfied with things as they are, and the influence 
of the legal profession is exerted against tinkering. In matters 
of the second class, which I have called administrative, because 
they generally involve the action of the State or of some of 
the communities which exist within it, there is more legislative 
activity. Every session sees experiments tried in this field, 
generally with the result of enlarging the province of govern- 
ment, both by interfering with the individual citizen and by 
attempting to do things for him which apparently he either 
does not do or does not do well for himself. 1 But the general 

1 See the chapter on " Laissez Faire," in Vol. II. 

Many of these measures have heen prepared hy associations outside the 
legislature, who embody their wishes in a bill, give it to a member or members, 



536 THE STATE GOVERNMENTS 



or " public " legislation, is dwarfed by the " private bill " legis- 
lation which forms the third of our classes. The bills that are 
merely local or special outnumber general bills everywhere, 
and outnumber them enormously in those States which, like 
Virginia, or Mississrppi (down till 1890), do not require cor- 
porations to be formed under general laws. 1 Such special bills 
are condemned by thoughtful Americans, not only as confus- 
ing the general law, but because they furnish, unless closely 
watched, opportunities for perpetrating jobs, and for inflicting 
injustice on individuals or localities in the interest of some 
knot of speculators. They are one of the scandals of the 
country. But there is a further objection to their abundance 
in the State legislatures. They are a perennial fountain of 
corruption. Promoted for pecuniary ends by some incorpo- 
rated company or group of men proposing to form a company, 
their passage is secured by intrigue, and b}^ the free expendi- 
ture of money which finds its way in large sums to the few 
influential men who control a State Senate or Assembly, and 
in smaller sums to those among the rank and file of members 
who are accessible to these solid arguments, and careless of 
any others. It is the possibility of making profit in this way 
out of a seat in the legislature which draws to it not a few men 
in those States which, like New York, Pennsylvania, or Illinois, 
offer a promising field for large pecuniary enterprises. Where 
the carcase is there will the vultures be gathered together. 
The money power, which is most formidable in the shape of 
large corporations, chiefly attacks the legislatures of these 
great States. It is, however, felt in nearly all States. And 
even where, as is the case in most States, only a small minor- 
ity of members are open to bribes, the opportunity which 
these numerous local and special bills offer to a man of making 
himself important, of obliging his friends, of securing some- 
thing for his locality and thereby confirming his local influence, 
is sufficient to make a seat in the legislature desired chiefly in 
respect of such bills, and to obscure, in the eyes of most 

and get it passed, perhaps with scarcely any debate. Thus not only the 
Labour organizations, such as the Knights of Labour, and the Grangers 
(farmers' clubs), bul the Women's Christian Temperance Union, the medical 
profession, the dentists, Hie dairymen, get their favourite schemes enacted. 

1 In 1S*K), the Kentttckj Legislature passed 176 public and 1752 local or 
private acts. 



chap, xliv WORKING OF STATE GOVERNMENTS 537 

members, the higher functions of general legislation which 
these assemblies possess. One may apply to these common- 
wealths, though in a new sense, the famous dictum, corruptis- 
sima republica plurimae leges. 

One form of this special legislation is peculiarly attractive 
and pernicious. It is the power of dealing by statute with 
the municipal constitution and actual management of cities. 
Cities grow so fast that all undertakings connected with them 
are particularly tempting to speculators. City revenues are 
so large as to offer rich plunder to those who can seize the con- 
trol of them. The vote which a city casts is so heavy as to 
throw great power into the hands of those who control it, and 
enable them to drive a good bargain with the wirepullers of 
a legislative chamber. Hence the control exercised by the 
State legislature over city government is a most important 
branch of legislative business, a means of power to scheming 
politicians, of enrichment to greedy ones, and if not of praise 
to evil-doers, yet certainly of terror to them that do well. 1 

We are now in a position, having seen what the main busi- 
ness of a State legislature is, to inquire what is likely to be 
the quality of the persons who compose it. The conditions 
that determine their quality may be said to be the following : — 

I. The system of selection by party conventions. As this 
will be described in subsequent chapters (Part III.), I will 
here say no more than that it prevents the entrance of good 
men and favours that of bad ones. 

II. The habit of choosing none but a resident to represent 
an electoral district, a habit which narrows the field of choice, 
and not only excludes competent men from other parts of the 
State, but deters able men generally from entering State pol- 
itics, since he who loses his seat for his own district cannot 
find his way back to the legislature as member for any other. 

III. The fact that the capital of a State — i.e. the meeting- 
place of the legislature and residence of the chief officials, is 

1 Although this tinkering with city government is most harmful where the 
cities are large, it is abundant even where the cities are small. For instance, 
in "Wisconsin, a Western State with only one large city (Milwaukee), there 
were passed in the session of 1885 about 500 acts granting or dealing with city 
charters, filling 1342 pages of print. All the other acts of the year filled only 
about 600 pages. — Address delivered by Dr. Albert Shaw (in 1888) at Cornell 
University. 



538 THE STATE GOVERNMENTS part ii 

usually a small town, at a distance from the most populous 
city or cities of the State, and therefore a place neither attrac- 
tive socially nor convenient for business men or lawyers, and 
which, it may be remarked in passing, is more shielded from 
a vigilant public opinion than is a great city, with its keen 
and curious press. Pennsylvanians who might be willing to 
serve in a legislature meeting at Philadelphia are less inclined 
to attend one at Harrisburg. An eminent citizen of Connect- 
icut observed to me that, whereas everybody in that little 
State could reach Hartford in a few hours from its farthest 
corner, a member attending the legislature of Illinois or Wis- 
consin might often have to quit his home and live during the 
session at Springfield or Madison, because these capitals are 
remote from the outer parts of those large commonwealths. 
He thought this a factor in the comparative excellence of the 
Connecticut legislature. 

IV. The nature of the business that comes before a State 
legislature. As already explained, by far the largest part of 
this business excites little popular interest and involves no 
large political issues. Unimportant it is not. Nothing could 
well be more important than to repress special legislation, and 
deliver cities from the fangs of the spoiler. But its impor- 
tance is not readily apprehended by ordinary people, the 
mischiefs that have to be checked being spread out over a 
multitude of bills, most of them individually insignificant, 
however ruinous in their cumulated potency. Hence a leading 
politician seldom troubles himself to enter a State legislature, 
while the men who combine high character with talent and 
energy are too much occupied in practising their profession or 
pushing their business to undertake the dreary task of wran- 
gling over gas and railroad bills in committees, or exerting 
themselves to win some advantage for the locality that returns 
them. 

I have not mentioned among these depressing conditions the 
payment of salaries to members, because it makes little differ- 
ence. It is no doubt an attraction to some of the poorer men, 
to penurious farmers, or half-starved lawyers. But in attract- 
ing them it does not serve to keep out any better men. Prob- 
ably the sense of public duty would be keener if legislative 
work was not paid at all. Put, looking at the question practi- 



chap, xliv WORKING OF STATE GOVERNMENTS 639 

cally, I doubt whether the discontinuance of salaries would 
improve the quality of American legislators. The drawbacks 
to the position which repel the best men, the advantages which 
attract inferior men, would remain the same as now ; and there is 
nothing absurd in the view that the places of those who might 
cease to come if they did not get their five dollars a day would 
be taken by men who would manage to make as large an in- 
come in a less respectable way. 

After this, it need scarcely be said that the State legislatures 
are not high-toned bodies. The best seem to be those of some 
of the New England States, particularly Massachusetts, where 
the venerable traditions surrounding an ancient commonwealth 
do something, though not enough, to sustain the dignity of the 
body and induce good men to enter it. This legislature, called 
the General Court, is, according to the best authorities, substan- 
tially pure, and does its work passably well. Its composition is, 
however, inferior to that of the General Courts of sixty years 
ago, and has not improved of late. Connecticut has a fair 
Senate, and a tolerable House of Representatives. It is also 
reported to be reasonably honest, though not free from dema- 
gogism. Vermont is pure ; New Hampshire, a State where 
constituencies are reproached with bribery, less respectable. 
Next come some of the North- Western States, where the popu- 
lation, consisting almost entirely of farmers, who own as well as 
work their land, sends up members who fairly represent its 
average intelligence, and are little below the level of its average 
virtue. There are no traditions in such States, and there are 
already corporations rich enough to corrupt members and be 
themselves black-mailed. Hence one is prepared to find among 
the legislators professional politicians of the worst class. But 
the percentage of such men is small in States like Michigan, 
Iowa, Minnesota, Oregon, probably not more than from five to 
ten per cent, the other members being often ignorant and 
narrow, but honest and well-intentioned. In Ohio and Indiana 
the proportion of black sheep may be somewhat higher. 

It is hard to present a general view of the Southern States, 
both because there are great differences among them, and be- 
cause they are still in a state of transition, generally, it would 
seem, transition towards a better state of things. Eoughly 
speaking, their legislatures stand below those of the North- 



640 THE STATE GOVERNMENTS part 11 

West, though in most a few men of exceptional ability and 
standing may be found. Kentucky and Georgia are among 
the better States, Mississippi and Arkansas are reported as 
among the less pure. Louisiana, infected by New Orleans, is 
admittedly the worst. 

The lowest place belongs to the States which, possessing the 
largest cities, have received the largest influx of European 
immigrants, and have fallen most completely under the control 
of unscrupulous party managers. New York, Philadelphia, 
Baltimore, Chicago, Cincinnati, San Francisco have done their 
best to poison the legislatures of the States in which they re- 
spectively lie by filling these bodies with members of a low 
type, as well as by being themselves the centres of enormous 
accumulations of capital. They have brought the strongest 
corrupting force into contact with the weakest and most cor- 
ruptible material ; and there has followed in Pennsylvania and 
New York such a Witches' Sabbath of jobbing, bribing, thiev- 
ing, and prostitution of legislative power to private interest as 
the world has seldom seen. Of course even in these States 
the majority of the members are not bad men, for the majority 
come from the rural districts or smaller towns, where honesty 
and order reign as they do generally in Northern and Western 
America outside a few large cities. Many of them are farmers 
or small lawyers, who go up meaning to do right, but fall into 
the hands of schemers who abuse their inexperience and prac- 
tise on their ignorance. One of the ablest and most vivacious 
of the younger generation of American politicians 1 says : 

"Where a number of men, many of them poor, some of them unscru- 
pulous, and others elected by constituents too ignorant to hold them to a 
proper accountability for their actions, are put into a position of great 
temporary power, where they are called to take action upon questions 
affecting the welfare of large corporations and wealthy private individuals, 
the chances for corruption are always great ; and that there is much 
viciousness and political dishonesty, much moral cowardice, and a good 
deal of actual bribe-taking at Albany, no one who has had practical expe- 
rience of legislation can doubt. At the same time, I think the good 
members outnumber the bad. . . . The representatives from the country 
districts are usually good men, well-to-do farmers, small lawyers, or pros- 
perous storekeepers, and are shrewd, quiet, and honest. They are often 

1 Mr. Theodore Roosevelt of New York, in the Century Magazine for 
April 1885. 



chap, xliv WORKING OF STATE GOVERNMENTS 541 

narrow-minded, and slow to receive an idea ; but they cling to it with the 
utmost tenacity. For the most part they are native Americans, and those 
who are not are men who have become completely Americanized in their 
ways and habits of thought. . . . The worst legislators come from the 
great cities. They are usually foreigners of little or no education, with 
exceedingly misty ideas as to morality, and possessed of an ignorance so 
profound that it could only be called comic were it not for the fact that it 
has at times such serious effects on our laws. It is their ignorance quite 
as much as actual viciousness which makes it so difficult to procure the 
passage of good laws, or to prevent the passage of bad ones ; and it is 
the most irritating of the many elements with which we have to contend 
in the fight for good government." * 

The same writer goes on to say that after sitting in three 
New York legislatures he came to think that about one-third 
of the members were open to corrupt influences, but that 
although the characters of those men were known to their 
colleagues and to the " lobby," it was rarely possible to con- 
vict them. Many of this worst third had not gone into the 
legislature meaning to make gain out of the position, but had 
been corrupted by it. They found that no distinction was to 
be won there by legitimate methods, and when temptation 
came in their way they fell, having feeble consciences and no 
statesmanlike knowledge. Or they were anxious above all 
things to pass some local measure on which their constituents 
were set, and they found they could not win the support of 
other members except by becoming accomplices in the jobs or 
"steals" which these members were "putting through." Or 
they gained their seat by the help of some influential man 
or powerful company, and found themselves obliged to vote 
according to the commands of their " owner." 2 

1 Any one with experience of legislative bodies will agree with the view that 
ignorance and stupidity cause more trouble than bad intentions, seeing that 
they are more common, and are the materials on which men of bad intentions 
play. 

2 "There came before a committee (of the New York House) of which I hap- 
pened to be a member, a perfectly proper bill in the interest of a certain cor- 
poration ; the majority of the committee, six in number, were thoroughly bad 
men, who opposed with the hope of being paid to cease their opposition. When 
I consented to take charge of the bill, I stipulated that not a penny should be 
paid to ensure its passage. It therefore became necessary to see what pressure 
could be brought to bear on the recalcitrant members ; and accordingly we had 
to find out who were the authors and sponsors of their political being. Three 
proved to be under the control of local statesmen of the same party as them- 
selves, and of equally bad moral character ; one was ruled by a politician of 



542 THE STATE GOVERNMENTS part ii 

The corrupt member has several methods of making gains. 
One, the most obvious, is to exact money or money's worth for 
his vote. A second is to secure by it the support of a group 
of his colleagues in some other measure in which he is person- 
ally interested, as for instance a measure which will add to 
the value of land near a particular city. This is " log-rolling," 
and is the most difficult method to deal with, because its 
milder forms are scarcely distinguishable from that legitimate 
give and take which must go on in all legislative bodies. It 
is, however, deemed so mischievous, that four new Constitu- 
tions have expressly enacted that it shall be held to constitute 
the offence of solicitation or bribery, and be punishable accord- 
ingly. 1 A third is black-mailing. A member brings in a bill 
either specially directed against some particular great corpora- 
tion, probably a railway, or proposing so to alter the general 
law as in fact to injure such a corporation, or a group of corpo- 
rations. He intimates privately that he is willing to " see " the 
directors or the law-agents of the corporation, and is in many 
cases bought off by them, keeping his bill on the paper till the 
last moment so as to prevent some other member from repeat- 
ing the trick. Even in the North- Western States there is 
usually a group of such "scallawag" members, who, finding 
the $300 they receive insufficient, increase their legislative 
income by levying this form of taxation upon the companies 
of the State. Nor is the device (technically called a "strike") 
quite unknown in New England, where a ten hours' labour bill, 
for instance, has frequently been brought in to frighten the 
large corporations and other capitalists into inducing its author 
to drop it, the inducements being such as capitalists can best 
apply. Every considerable railway keeps an agent or agents 
continually on the spot while a State legislature is in session, 
watching the bills brought in and the committees that deal 
with them. Such an agent sometimes relies on the friends of 
the railway to defeat these bills, and uses the usual expedients 
for creating friends. But it is often cheaper and easier to 

unsavoury reputation from a different city ; the fifth, a Democrat, was owned 
by a Republican (!) Federal official, and the sixth by the president of a horse- 
car [street tramway] company. A couple of letters from these two magnates 
forced the last-mentioned members to change front on the bill with surprising 
alacrity." — Mr. Theodore Roosevelt, vt supra. 
1 North Dakota, Montana, Idaho, and Wyoming. 



chap, xliv WORKING OF STATE GOVERNMENTS 543 

square the assailant. 1 Of course the committees are the focus 
of intrigue, and the chairmanship of a committee the position 
which affords the greatest facilities for an unscrupulous man. 
Round the committees there buzzes that swarm of professional 
agents which Americans call " the lobby," soliciting the mem- 
bers, threatening them with trouble in their constituencies, 
plying them with all sorts of inducements, treating them to 
dinners, drinks, and cigars. 2 

In these demoralized States the State Senate is apt to be a 
worse body than the House, whereas in the better States the 
Senate is usually the superior body. 3 The reason is two-fold. 
As the Senate is smaller — in New York it consists of 32 
members against 128 in the Assembly — the vote of each 
member is of more consequence, and fetches, when venal, a 
higher price. Other things being equal, a stronger temptation 
is more likely to overcome virtue, and other things practically 
are equal, because it is just as hard to fix responsibility on a 
senator as on an Assembly man, and the post is no more 
dignified. And the second reason is that the most adroit and 
practised intriguers work their way up into the Senate, where 
their power (which includes the confirmation of appointments) 
is greater and their vote more valuable. There is a survival of 
the fittest, but as fitness includes the absence of scruples, this 
comes in practice to mean the natural selection of the worst. 

1 The president of a Western railroad, an upright as well as able man, told 
me that he was obliged to keep constant guard at the capital of the State in 
which the line lay, while the legislature was sitting, and to use every means 
to defeat bills aimed at the railway, because otherwise the shareholders would 
have been ruined. He deplored the necessity. It was a State of comparatively 
good tone, but there was such a prejudice against railroads among the farming 
population, that mischievous bills had a chance of success, and therefore des- 
perate remedies were needed. 

2 " One senator, who was generally known as ' the wicked Gibbs,' spent two 
years at Albany, in which he pursued his ' business ' so shamelessly that his 
constituents refused to send him there again ; but he coolly came out a- year 
later and begged for a return to the Assembly on the ground that he was 
financially embarrassed, and wished to go to the Assembly in order to retrieve 
his fortunes on the salary of an Assembly-man, which is $1500 (£300) ! " — Mr. 
J. B. Bishop of New York, in a paper entitled Money in City Elections, p. 6. 

3 Some of my informants would not admit this ; and some fixed the percent- 
age of corrupt men, even at Albany, lower than Mr. Roosevelt does. Writers 
of the pessimistic school make it even higher. I give here and elsewhere what 
seem to be on the whole the best supported views, though, as Herodotus says 
about the legend of Cyrus, "knowing three other paths of story also." 



544 THE STATE GOVERNMENTS part ii 

I escape from this Stygian pool to make some observations 
which seem applicable to State legislatures generally, and not 
merely to the most degraded. 

The spirit of localism, surprisingly strong everywhere in 
America, completely rules them. A member is not a member 
for his State, chosen by a district but bound to think first of the 
general welfare of the commonwealth. He is a member for 
Brownsville, or Pompey, or the Seventh district, and so forth, 
as the case may be. His first and main duty is to get the most 
he can for his constituency out of the State treasury, or by 
means of State legislation. No appeal to the general interest 
would have weight with him against the interests of that spot. 
What is more, he is deemed by his colleagues of the same 
party to be the sole exponent of the wishes of the spot, and 
solely entitled to handle its affairs. If he approves a bill 
which affects the place and nothing but the place, that is con- 
clusive. Nobody else has any business to interfere. This 
rule is the more readily accepted, because its application all 
round serves the private interest of every member alike, while 
members of more enlarged views, who ought to champion the 
interests of the State and sound general principles of legisla- 
tion, are rare. When such is the accepted doctrine as well as 
invariable practice, log-rolling becomes natural and almost 
legitimate. Each member being the judge of the measure 
which touches his own constituency, every other member sup- 
ports that member in passing the measure, expecting in return 
the like support in a like cause. He who in the public interest 
opposes the bad bill of another, is certain to find that other 
opposing, and probably with success, his own bill however 
good. 

The defects noted (Chapters XIV.-XVII.) as arising in 
Congress from the want of recognised leadership and of per- 
sons officially bound to represent and protect the interests of 
the people at large reappear in the State legislatures, on a 
smaller scale, no doubt, but in an aggravated form, because the 
level of ability is lower and the control of public opinion less. 
There is no one to withstand the petty localism already referred 
to; no one charged witli the duty of resisting proposals which 
some noisy section may demand, but whose ultimate mischief, 
or pernicious effect as precedents, thoughtful men perceive. 



chap, xliv WORKING OF STATE GOVERNMENTS 545 

There are members for districts, but no members for the people 
of the State. Thus many needless bills and many bad bills 
are passed. And when some difficult question arises, it may 
happen that no member is found able to grapple with it. Some- 
times the governor comes to the rescue by appointing a com- 
mission of eminent men to devise and suggest to the legislature 
a measure to deal with the question. Sometimes the Consti- 
tution contains a provision that the judges shall report upon 
all defects in the judicial system in order that the needed 
reform may be thereupon carried. Such are the roundabout 
ways in whicli efforts are made to supply the want of capacity 
in the legislators, and the absence of a proper system of co- 
operation between the executive and legislative departments. 

There is in State legislators, particularly in the West, a 
restlessness which, coupled with their limited range of knowl- 
edge and undue appreciation of material interests, makes them 
rather dangerous. Meeting for only a few weeks in the year, or 
probably in two years, they are alarmingly active during those 
weeks, and run measures through whose results are not appre- 
hended till months afterwards. It is for this reason, no less 
than from the fear of jobbery, that the meeting of the legis- 
lature is looked forward to with anxiety by the "good citizens " 
in these communities, and its departure hailed as a deliverance. 
I once asked the governor of a far Western commonwealth 
how he got on with his legislature. " I won't say they are 
bad men," he answered, " but the pleasantest sight of the year 
to me is when at the end of the session I see their coat tails 
go round the street corner." 

Both this restlessness and the general character of State 
legislation are illustrated by the enormous numbers of bills in- 
troduced in each session, comparatively few of which pass, 
because the time is too short, or opposing influences can be 
brought to bear on the committees. 

There were introduced (in the sessions of 1885 or 1886) — 

In Alabama 1469 bills (442 passed' 

" Kentucky 2390 " (1400 " 
" Illinois 1107 " (131 " 

" Pennsylvania 1065 " (221 
" New York 2093 » (681 " 
VOL. I 2 N 



546 THE STATE GOVERNMENTS part ii 

In ten States the total number of bills introduced was 
12,449, of which 3793 passed. The vast majority of these 
bills were local or special. 1 In 1889 there were introduced 
in the legislatures of eleven States 10,838 public bills, of which 
only 1878 were passed, besides 3639 private Acts passed in four 
of these States. 2 In South Carolina, during the four years 
preceding 1886, out of about 900 Acts passed, only 256 related 
to matters of general public concern. Acts of incorporation, 
grants of inheritance, changes of names and releases from 
indebtedness, had consumed a large proportion of the time of 
the legislature at a great public expense, and to the serious 
detriment of the State. Yet South Carolina is not a State in 
which there is much capital or many large undertakings. The 
place which the petty matters mentioned take in it would, in 
more prosperous communities, be taken by bills relating to 
railroad and other companies, and to cities. The expense to 
which the States are put by their legislatures, with results 
rather injurious than beneficial, is very great. 

" In South Carolina, where the session is short, the cost is reported 
by the secretary of state at only $52,000. But in Pennsylvania, with 
158 days of session, it is $686,500 (£137,300). In Connecticut the last 
session of ninety days cost $98,000, while the general expenses of the 
legislature of California are $130,000 for a session of sixty days. The 
cost of printing, of travelling, and other incidental expenses must be 
added in order to form an accurate estimate of the burden imposed on the 
tax-payers of the States to carry on this badly-managed business of law- 
making, which varies from a daily average cost of about $1000 per diem 

1 Even among the Acts which appear in the statute-hooks of the States, 
under the heading of general laws there are many of a local or special 
character. I find, on referring to the laws of Louisiana passed in 1886, that 
of 96 so-called general Acts passed, 30 were really local or special. In 
Nebraska, in 1887, there were passed 114 general Acts, 22 of which, while 
classed among general laws, were really local or personal, and 17 were 
described as special. In Minnesota, in 1887, of 265 classed as genera] Acts, 36 
seem from their titles to he local or special. But it is not always easy to dis- 
cover the substance from the title, so the number of special Acts classed as 
general may be still larger. Some States {e.g. Wyoming) now forbid the 
passing of any private Acts. 

As remarked in an earlier chapter, the total number of bills of all kinds 
introduced in 1885 into the British Parliament, which is the sole legislative 
authority for a population of thirty-eight millions, was 481, of which 282 
passed. 

2 I take these figures from the presidential address of Mr. Henry Hitchcock 
to the American Bar Association at its annual meeting in 1890. 



chap, xliv WOKKING OF STATE GOVERNMENTS 547 

for every legislative session to over $4000 per diem, making an aggregate 
in the total number of States, and in Congress, which it is impossible to 
ascertain with exactness, but which cannot, I think, be less than 
$10,000,000 (£2,000,000), not as an exceptional outlay, but as the price 
paid for current legislation." 1 

Nothing is more remarkable about these State legislators 
than their timidity. No one seems to think of having an 
opinion of his own. In matters which touch the interests of 
his constituents, a member is, of course, their humble servant. 
In burning party questions — they are few, and mostly personal 
— he goes with his party. In questions of general public 
policy he looks to see how the cat jumps ; and is ready to vote 
for anything which the people, or any active section of the 
people, cry out for, though of course he may be secretly un- 
friendly, and may therefore slyly try to spoil a measure. 
This want of independence has some good results. It enables 
a small minority of zealous men, backed by a few newspapers, 
to carry schemes of reform w T hich the majority regard with 
indifference or hostility. Thus in bodies so depraved as the 
legislatures of New York and Pennsylvania, bills have lately 
been passed improving the charters of cities, creating a secret 
ballot, and even establishing an improved system of appoint- 
ments to office. A few energetic reformers went to Albany 
and Harrisburg to strengthen the hands of the little knot of 
members who battle for good government there, and partly 
frightened, partly coaxed a majority of the Senate and House 
into adopting proposals opposed to the interests of professional 
politicians. Some ten years ago, two or three high-minded 
and sagacious ladies obtained by their presence at Albany the 
introduction of reforms into the charitable institutions of New 
York city. The ignorance and heedlessness of the "profes- 
sionals," who do not always see the results of legislative 
changes, and do not look forward beyond the next few r months, 
help to make such triumphs possible ; and thus, as the Bible 
tells us that the wrath of man shall praise God, the faults of 
politicians are turned to work for righteousness. 

In the recent legislation of many States, especially West- 
ern States^ there is a singular mixture of philanthropy and 
humanitarianism with the folly and jobbery I have described, 

1 Address of Mr. W. A. Butler to the American Bar Association in 1886. 



548 THE STATE GOVERNMENTS part ii 

like threads of gold and silver woven across a warp of dirty 
sacking. Every year sees bills passed to restrict the sale of 
liquor, to prevent the sale of indecent or otherwise demoraliz- 
ing literature, to protect women and childreu, to stamp out 
lotteries and gambling houses, to improve the care of the 
blind, the insane, and the poor, which testify to a warm and 
increasing interest in all good works. These measures are to 
be explained, not merely by that power which an active and 
compact minority enjoys of getting its own way against a 
crowd of men bent each on his own private gain, and therefore 
not working together for other purposes, but also by the real 
sympathy which many of the legislators, especially in the 
rural districts, feel for morality and for suffering. Even the 
corrupt politicians of Albany were moved by the appeals of 
the philanthropic ladies to whom I have referred ; much more 
then would it be an error to think of the average legislator as 
a bad man, merely because he will join in a job, or deal 
unfairly with a railroad. The moral standard of Western 
America is not quite the same as that of England, just as the 
standard of England differs from that of Germany or France. 
It is both higher and lower. Some sins excite more anger 
or disgust than they do in England ; some are more lightly 
forgiven, or more quickly forgotten. Laxity in the discharge 
of a political trust belongs to the latter categoiy. The news- 
papers accuse everybody ; the ordinary citizen can seldom tell 
who is innocent and who is guilty. He makes a sort of com- 
promise in his own mind by thinking nobody quite black, but 
everybody gray. And he goes on to think that what every- 
body does cannot be very sinful. 



CHAPTER XLV 

REMEDIES FOR THE FAULTS OF STATE GOVERNMENTS 

The defects in State governments, which our examination 
of their working has disclosed, are not those we should have 
expected. It might have been predicted, and it was at one 
time believed, that these authorities, consumed by jealousy and 
stimulated by ambition, would have been engaged in constant 
efforts to extend the sphere of their action and encroach on 
the National government. This does not happen, and seems 
most unlikely to happen. The people of each State are 
now not more attached to the government of their own 
commonwealth than to the Federal government of the nation, 
whose growth has made even the greatest State seem insig- 
nificant beside it. 

A study of the frame of State government, in which the 
executive department is absolutely severed from the legisla- 
tive, might have suggested that the former would become too 
independent, misusing its powers for personal or party pur- 
poses, while public business would suffer from the want of con- 
cert between the two great authorities, that which makes and 
that which carries out the law. 

This also has proved in practice to be no serious evil. The 
legislature might indeed conceivably work better if the gov- 
ernor, or some of his chief officials, could sit in it and exercise 
an influence on its deliberations. Such an adaptation of the 
English cabinet system has, however, never been thought of 
for American States ; and the example of the Provincial legis- 
latures of Canada, in each of which there is a responsible 
ministry sitting in the legislature, does not seem to have 
recommended it for imitation. Those who founded the State 
governments did not desire to place any executive leaders in 
a representative assembly. Probably they were rather in- 



550 THE STATE GOVERNMENTS part ii 

clined to fear that the governor, not being accountable to the 
legislature, would retain too great an independence. The 
recent creation of various administrative officers or Boards 
has gone some way to meet the difficulties which the incom- 
petence of the legislatures causes, for these officers or Boards 
frequently prepare bills which some member of the legislature 
introduces, and which are put through without opposition, 
perhaps even without notice, except from a handful of mem- 
bers. On the whole, the executive arrangements of the State 
work well, though they might, in the opinion of some judicious 
publicists, be improved by vesting the appointment of the 
chief officials in the governor, instead of leaving it to direct 
popular election. This would tend to give more unity of pur- 
pose and action to the administration. The collisions which 
occur in practice between the governor and the legislature 
relate chiefly to appointments, that is to say, to personal 
matters, not involving issues of State policy. 

The real blemishes in the system of State government are all 
found in the composition or conduct of the legislatures. They 
are the following : — 

Inferiority, as respects knowledge, skill, and sometimes also 
conscience, of the bulk of the men who fill these bodies. 

Improvidence in matters of finance. 

Heedlessness in passing administrative bills. 

Want of proper methods for dealing with local and special 
bills. 

Failure of public opinion adequately to control legislation, 
and particularly local and special bills. 

The practical result of these blemishes has been to create a 
large mass of State and local indebtedness which ought never 
to have been incurred, to allow foolish experiments in law- 
making to be tried, and to sanction a vast mass of private en- 
terprises, in which public rights and public interests become the 
sport of speculators, or a source of gain to monopolists, with 
the incidental consequence of demoralizing the legislators 
themselves and creating an often unjust prejudice against all 
corporate undertakings. 

What arc the checks or remedies which have been provided 
to limit or suppress these evils ? Any one who has followed 
the account given of the men who compose the legislatures and 



chap, xlv REMEDIES FOR THEIR FAULTS 551 

the methods they follow will have felt that these checks must 
be considerable, else the results would have been worse than 
those we see. All remedies are directed against the legislative 
power, and may be arranged under four heads. 

First, there is the division of the legislature into two houses. 
A job may have been smuggled through one house, but the 
money needed to push it through the other may be wanting. 
Some wild scheme, professing to benefit the farmers, or the 
cattlemen, or the railroad employes, may, during its passage 
through the Assembly, rouse enough attention from sensible 
people to enable them to stop it in the Senate. The mere ten- 
dency of two chambers to disagree with one another is deemed 
a benefit by those who hold, as the Americans do, that every 
new measure is prima facie likely to do more harm than good. 
Most bills are bad — ergo, kill as many as you can. Each 
house, moreover, has, even in such demoralized State legis- 
latures as those of New York or Pennsylvania, a satisfac- 
tion, if not an interest, in unveiling the tricks of the other. 

Secondly, there is the veto of the governor. How much the 
Americans value this appears from the fact that, whereas in 
1789 there was only one State, Massachusetts, which vested 
this power in the chief magistrate, all of the now existing 
States except four give it to him. Some constitutions (includ- 
ing all the new ones) contain the salutary provision that the 
governor may reject one or more items of an appropriation 
bill (sometimes even of any bill) while approving the bill 
as a whole; and this has been found to strengthen his hands 
immensely in checking the waste of public money on bad en- 
terprises. This veto power, the great stand-by of the people 
of the States, illustrates admirably the merits of concentrated 
responsibility. The citizens, in choosing the governor to rep- 
resent the collective authority of the whole State, lay on him 
the duty of examining every bill on its merits. He cannot 
shelter himself behind the will of the representatives of the 
people, because he is appointed to watch and check those rep- 
resentatives as a policeman watches a suspect. He is bound to 
reject the bill, not only if it seems to him to infringe the 
Constitution of the State, but also if he thinks it in any wise 
injurious to the public, on pain of being himself suspected of 
carelessness, perhaps of complicity in some corrupt design. 



552 THE STATE GOVERNMENTS part ii 

The legislature may, of course, pass the bill over his v^eto by 
a two-thirds vote; but although there may exist a two-thirds 
majority in favour of the measure, they may fear, after the 
veto has turned the lamp of public opinion upon it, to take so 
strong a step. There are, of course, great differences between 
one governor and another, as well as between one State and 
another, as regards the honesty with which the power is exer- 
cised, for it may be, and sometimes is, used by a "Ring" 
governor to defeat measures of reform. But it is a real and 
effective power everywhere ; and in the greatest States, where 
the importance of the office sometimes secures the election of 
an able and courageous man, it has done excellent service. 1 

Thirdly, there are limitations imposed on the competence of 
the legislature. I have already mentioned some of these lim- 
itations, the most numerous, and at present the most important 
of which relate to special and local (or what would be called 
in England "private") bills. These bills, while they destroy 
the harmony and simplicity of the law, and consume the time 
of the legislature, are also so fertile a source of jobbery 2 that 
to expunge them or restrict them to cases where a special 

1 Although the existence of this ultimate remedy tends to make good mem- 
bers relax their opposition to had hills, because they know that the veto will 
kill them, this is a less evil than the disuse of the veto would be. 

2 " In twelve States the legislature is forbidden to create any corporation 
whatever, municipalities included, except by general law, and in thirteen 
others to create by special Act any except municipal corporations, or those to 
which no other law is applicable. In some States corporations can he created 
by special Act only for municipal, charitable, or reformatory purposes. Such 
provisions are not intended to discourage the formation of private corpora- 
tions. On the contrary, in all these States general laws exist under which they 
can be formed with great facility. Indeed the defects in some of these statutes, 
and their failure to provide safeguards against some at least of the very evils 
which they were intended to meet, might well suggest to legislators the ques- 
tion whether in avoiding the Scylla of special legislation they have not been 
drawn into the Charybdis of franchises indiscriminately bestowed. Perhaps 
the time will come when recommendations such as those urged by the New 
York railroad commission will be acted on, and the promoters of a new rail- 
road will be obliged to furnish some better reason for its existence, and for 
their exercising the sovereign power of eminent domain, than the chance of 
forcing a company already established to buy them out — or, failing that, the 
alternative of being sold out under foreclosure, pending a receivership." — 
Hitchcock, State Constitutions, p. 36. 

"A great field for favouritism and jobbery exists, when special Acts of in- 
corporation are required for each case in which special favours and special 
privileges may be given away by a legislature that may be corruptly influ- 
enced, without imposing any reciprocal obligation on the corporation. Fully 



chap, xlv REMEDIES FOR THEIR FAULTS 553 

statute was really needed, would be a great benefit. The con- 
stitutional prohibitions described effect this to some extent. 
Illinois, for instance, has by such prohibitions reduced her 
sessional statutes to about 300 pages, and Iowa averages only 
200-250 pages, whereas the Wisconsin statutes of 1885 reached 
2000 pages, there being in that State far less effective restric- 
tions. But the powers of evil do not yield without a battle. 
All sorts of evasions are tried, and some succeed. For instance, 
there is a prohibition in the Constitution of New York to pass 
any but general laws relating to the government of cities. 
An Act is passed which is expressed to apply to cities with a 
population exceeding one hundred thousand, but less than two 
hundred thousand. There happens to be only one such city 
in the State, viz. Buffalo, but as there might be more, the law 
is general, and escapes the prohibition. So the Constitution 
of Ohio expressly provides that the legislature " shall pass no 
special act conferring corporate powers." But in 1890 nearly 
fifty such acts were passed, the provision being evaded by the 
use of general enacting words which can in fact apply only to 
one place. One act, for instance, authorized villages with a 
population of not less than 1903 nor more than 1912 to issue 
bonds for natural gas developments ; another empowers any 
city having a population of 15,435, by the census of 1890, to 
levy a library tax. 1 

Provisions against special legislation are also evaded in 
another way, viz. by passing Acts which, because they purport 
to amend general Acts, are themselves deemed general. Here 
is a recent instance. The Constitution of New York prohibits 
the legislature from passing any private or local Act incorpo- 
rating villages, or providing for building bridges. A general 
Act was passed in 1885 for the incorporation of villages, with 
general provisions as to bridges. Next year the following Act 
was passed, which I give verbatim. It amends the Act of 
1885, by taking out of it all the counties in the State except 

two-thirds of the lobby ism, jobbery, and log-rolling, the fraud and trickery that 
are common to our State legislatures, is due to this power of creating private 
corporations." — Ford, Citizens' Manual, ii. p. 68. 

1 Mr. Hitchcock (from whose address I take the Ohio instance) adds that the 
Supreme court of Ohio has held such evasions unconstitutional, but that they 
continue notwithstanding, the legislature, and the villages or cities taking 
their chance. 



554 THE STATE GOVERNMENTS part ii 

Westchester, and then excludes the application of the Act to 

two towns in Westchester. It is thus doubly a " private or 

local Act," but the prohibition of the Constitution is got 

round. 1 

CHAP. 556. 

AN ACT to amend chapter two hundred and ninety-one of the laws of 
eighteen hundred and seventy, entitled "An Act for the Incorporation of 
Villages." 

Passed June 4, 1886 ; three-fifths being present. 

The People of the State of New York, represented 

in Senate and Assembly, do enact as follows : — 

Section 1. — Section two of chapter four hun- 

Viliage Incorporation dred and fifty of the laws of eighteen hundred and 

. . ' ' \ oot . . eighty-five, is hereby amended so as to read as 

Act 01 1885, as to ?, 

follows : — 
bridges, to apply Section 2. —All of the counties in this State are 

only to part of hereby exempted from the provisions of this Act 

to . . n . except the county of Westchester, but nothing in 

Westchester County. ,, . * , ..-,", -,i , a . ■, 

this Act contained shall be construed so as to apply 

to the towns of Greenburgh and Mount Pleasant 
in said county of Westchester. 

Section 3. — This Act shall take effect immedi- 
ately. 

Where evasions of this kind become frequent the confusion 
of the statute-book is worse than ever, because you cannot tell 
without examination whether an Act is general or special. 

The reader will have noticed in the heading of the Act just 
quoted the words "three-fifths being present." This is one 
of the numerous safeguards imposed on the procedure of the 
State legislatures. Others have been specified in Chapter XL. 
Their abundance in the newest Constitutions shows how these 
efforts to deal with the symptoms have failed to eradicate the 
disease, and their increasing minuteness bears witness to the 
endless evasions they seek to anticipate. 2 

1 The Constitution of North Dakota (§ 70) expressly prohibits this evasion. 

2 Forinstance.it is sometimes provided that no bill shall be introduced within 
a certain period after the beginning or before the end of the session, so as to 
prevent bills from being smuggled through in the last days. This provision is 
evaded "by introducing a new bill after the time has expired when it may con- 
stitutionally be done, as an amendment to some pending bill, the whole of 
which, except the enacting clause, is struck out to make way for it. Thus, the 
member who thinks lie may have occasion for the introduction of a new bill 
after the constitutional period has expired, takes care to introduce sham bills 
in due season, which he can use as stocks to grafl upon, and which he uses 
irrespective of their character or contents. The sham bill is perhaps a bill to 



chap, xlv REMEDIES FOR THEIR FAULTS 555 

The inventive genius of American legislators finds or makes 
many holes in the net which the people have tried to throw 
over them by the Constitution. Yet, though there be none of 
the restrictions mentioned which is not sometimes violated or 
evaded, they have, on the whole, worked well. The enemy is 
held at bay, and a great deal of bad legislation is prevented. 
Some bills have to be dropped, because too plainly repugnant to 
the Constitution to be worth carrying farther. The more igno- 
rant members do not always apprehend where the difficulty lies. 
They can barely read the Constitution, and the nature of its 
legal operation is as far beyond them as the cause of thunder is 
beyond cats. A friend of mine who sat for some years in the 
New York Assembly was once importuned by an Irish member 
to support that particular member's little bill. He answered 
that he could not, because the bill was against the Constitu- 
tion. "Och, Mr. Eobert," was the reply, "shure the Con- 
stitootion should never be allowed to come between frinds." 

Some bills again the governor can scarcely help vetoing, 
because they violate a Constitutional restriction; while of 
those that pass him unscathed, a fair number fall victims 
to the courts of law. It may be added that the enforcement 
of the limitations imposed by a State Constitution necessarily 
rests with the judges, since it is they who pronounce, if and 
when the point is brought up in a suit between parties, 
whether or no a statute has transgressed the bounds which 
the fundamental instrument sets, or whether a Constitutional 
amendment has been duly carried. 1 

incorporate the city of Siam. One of the member's constituents applies to 
him for legislative permission to construct a dam across the Wild Cat River. 
Forthwith, by amendment, the bill, entitled a bill to incorporate the city of 
Siam, has all after the enacting clause stricken out, and it is made to provide, 
as its sole object, that John Doe may construct a dam across the Wild Cat. 
With this title, and in this form it is passed ; but the house then considerately 
amends the title to correspond with the purpose of the bill, and the law is 
passed, and the Constitution at the same time saved!" — Cooley, Constit. 
Limit, p. 169 note. 

1 A remarkable instance of the technical literalism with which the courts 
sometimes enforce Constitutional restrictions is afforded by the fate of a 
recent liquor Prohibition amendment to the Constitution of Iowa. This 
amendment had been passed by both Houses of the State legislature in two 
successive legislatures, had been submitted to the people and enacted by a 
large majority, had been proclaimed by the governor and gone into force. 
It was subsequently discovered that one House of the first legislature had, 



556 THE STATE GOVERNMENTS part ii 

Some one may remark that there are two material differ- 
ences between the position of these State judges and that of 
the Federal judges. The latter are not appointed by a State, 
and are therefore in a more independent position when any 
question of conflict between State laws or Constitutions and 
the Federal Constitution or statutes comes before them. 
Moreover they hold office for life, whereas the State judge 
usually holds for a term of years, and has his re-election to 
think of. Can the State judge then be expected to show him- 
self equally bold in declaring a State statute to be unconsti- 
tutional ? Will he not offend the legislature, and the party 
managers who control it, by flying in their faces ? 

The answer is that although the judge may displease the 
legislature if he decides against the validity of an unconstitu- 
tional statute, he may displease the people if he decides for it ; 
and it is safer to please the people than the legislature. The 
people at large may know little about the matter, but the legal 
profession know, and are sure to express their opinion. The 
profession look to the courts to save them and their clients 
from the heedlessness or improbity of the legislature, and will 
condemn a judge who fails in this duty. Accordingly, the 
judges seldom fail. They knock about State statutes most 
unceremoniously, and they seldom suffer for doing so. In one 
case only is their position a dangerous one. When the people, 
possessed by some strong desire or sentiment, have either by 
the provisions of a new Constitution, or by the force of clamour, 
driven the legislature to enact some measure meant to cure a 
pressing ill, they may turn angrily upon the judge who holds 
that measure to have been unconstitutional. This has several 
times happened, and is always liable to happen where elective 
judges hold office for short terms, with the unfortunate result 
of weakening the fortitude of the judges. In 1786 the supreme 

through the carelessness of a clerk, neglected to " spread the Amendment, in 
full on its journal," as prescribed by the Constitution. The point being brought 
before the Supreme Court of Iowa, it was held that the Amendment, owing to 
this informality, had not been duly passed, and was wholly void. 

" An illustration of the range which the action of courts may take in enforc- 
ing Constitutional safeguards was recently given by the Supreme Court of 
Wisconsin, when it held invalid a re-districting of the State (for elections to 
the State legislature), as being inconsistent with the provision of the Constitu- 
tion that districts should be reasonably equal. Such checks on gerrymander- 
ing are necessary, and it is only thus that they can be made effective." 



chap, xlv REMEDIES FOR THEIR FAULTS 557 

court of Rhode Island decided that an Act passed by the legis- 
lature was invalid, because contravening the provisions of the 
Colonial Charter (which was then still the Constitution of the 
State), securing to every accused person the benefit of trial by 
jury. 1 The legislature were furious, and summoned the judges 
to appear before them and explain the grounds of their deci- 
sion. The attempt to dismiss them failed, but the judges were 
not re-elected by the legislature when their term of office expired 
at the end of the year. In Ohio, the legislature passed in 1805 
an Act which Judge Pease, in a case arising under it, held to 
be repugnant to the Constitution of Ohio, as well as to the 
Federal Constitution, and accordingly declined to enforce. 
In 1808, he and another judge of the supreme court of the 
State who had concurred with him, were impeached by the 
House before the Senate of Ohio, but were acquitted. In 
1823, the Supreme Court of Kentucky held invalid a Debtors' 
Eelief act passed by the legislature on the ground that it 
violated the obligation of contracts clause of the Federal Con- 
stitution by making paper issued by a State bank legal tender. 
The judges were impeached, but a two-thirds majority for con- 
viction could not be obtained, so the angry legislature extin- 
guished the court itself and created a new court of Appeals, 
to which the governor appointed new men as judges. The 
old court, however, held its ground, insisting that the new 
court was unconstitutional, and after a passionate struggle, a 
new legislature repealed in 1825 the act creating the new 
court. So justice and reason prevailed. In 1871, the legislature 
of Illinois passed a law, intending to carry out a provision 
of the Constitution of 1870, which was held unconstitutional 
by Judge Lawrence, greatly to the disappointment of the 
farmers, who had expected valuable results from it. He was 
not impeached, but when shortly afterwards he sought re- 
election, he was defeated solely on the ground of this deci- 

1 See p. 244, ante. The Act was one for forcing State paper money into 
circulation by imposing a penalty, recoverable on summary conviction without 
a jury, on whoever should refuse to receive on the same terms as specie the 
bills of a State-chartered bank. No question of the United States Constitu- 
tion could arise, because it did not yet exist. To these Rhode Island judges 
belongs the credit not only of having resisted an excited multitude, but of 
having set one of the first examples in American history of the exercise of a 
salutary function. Their decision was that they had no jurisdiction. 



558 THE STATE GOVERNMENTS part ii 

sion. 1 These instances show that the courts have had to fight 
for their freedom in the discharge of the dnty which the Con- 
stitutions throw on them. But the paucity of such conflicts 
shows that this freedom is now generally recognized, and may 
be deemed, at least for the present, to be placed above the 
storms of popular passion. 2 

It will be seen from what has been said that the judges are 
an essential part of the machinery of State government. But 
they are so simply as judges, and not as invested with political 
powers or duties. They have not received, any more than the 
Federal judges, a special commission to restrain the legislature 
or pronounce on the validity of its acts. There is not a word 
in the State Constitutions, any more than in the Federal Con- 
stitutions, conferring any such right upon the courts, or indeed 
conferring any other right than all courts of law must neces- 
sarily enjoy. When they declare a statute unconstitutional 
they do so merely in their ordinary function of expound- 

1 1 quote from Mr. Hadley's book on railroad transportation (through Dr. 
Hitchcock's essay already referred to) the following account of the circum- 
stances: — " The Constitutional Convention of Illinois in 1870 made an impor- 
tant declaration concerning State control of railway rates, on the basis of which 
a law was passed in 1871 establishing a system of maxima. This law was pro- 
nounced unconstitutional by Judge Lawrence. The result was that he imme- 
diately afterwards failed of re-election, solely on this ground. The defeat of 
Judge Lawrence showed the true significance of the farmers' movement [the 
so-called Granger movement]. They were concerned in securing what they 
felt to be their rights, and were unwilling that any constitutional barrier 
should be made to defeat the popular will. They had reached the point where 
they regarded many of the forms of law as mere technicalities. They were 
dangerously near the point where revolutions begin. But they did not pass 
the point. The law of 1873 avoided the issue raised by Judge Lawrence against 
that of 1871. Instead of directly fixing maxima, it provided that rates must 
be reasonable, and then provided for a commission to fix reasonable rates." 
The courage of Judge Lawrence was not therefore thrown away ; it cost him 
his place, but it served the people and vindicated the law. 

In 1890, the executive committee of the Minnesota Farmers' Alliance in 
passing resolutions demanding the abolition of the Federal Supreme Court, 
which had recently held that the State legislature had no power to fix railroad 
freight rates, relieved their feelings by saying, " We call attention to the fact 
that the citizens of England, from whom wo have largely derived our form of 
government, would not permit for one instant a bench of judges to nullify an 
Act of Parliament. There the people are properly omnipotent. ... In our 
anxiety to protect the rights of property we have evented a machine that 
threatens to destroy the rights of man." 

2 There have of course been other instances in which judges have been im- 
peached or removed ; but T am here dealing only with those in which the ground 
of complaint was the declaring a legislative act to be invalid. 



chap, xlv REMEDIES EOR THEIR EAULTS 559 

ing the law of the State, its fundamental law as well as its 
laws of inferior authority, just as an English judge might hold 
an order made by the Queen in Council to be invalid, because 
in excess of the powers granted by the Act of Parliament 
under which it was made. It would be as clearly the duty of 
an English county court judge so to hold as of the highest 
court of appeal. So it is the duty of the humblest American 
State judge to decide on the constitutionality of a statute. 

So far we have been considering restrictions imposed on the 
competence of the legislature, or on the methods of its pro- 
cedure. We now come to the fourth and last of the checks 
which the prudence of American States imposes. It is a very 
simple, not to say naive, one. It consists in limiting the tinfe 
during which the legislature may sit. Formerly these bodies 
sat, like the English Parliament, so long as they had business 
to do. The business seldom took long. When it was done, 
the farmers and lawyers naturally wished to go home, and 
home they went. But when the class of professional politi- 
cians grew up, these wholesome tendencies lost their power 
over a section of the members. Politics was their business, 
and they had none other to call them back to the domestic 
hearth. 1 They had even a motive for prolonging the session, 
because they prolonged their legislative salary, which was 
usually paid by the day. Thus it became the interest of the 
tax-payer to shorten the session. His interest, however, was 
still stronger in cutting short the jobs and improvident be- 
stowal of moneys and franchises on which he found his repre- 
sentatives employed. Accordingly most States have fixed a 
number of days beyond which the legislature may not sit. 
Many of these fix it absolutely ; but a few prefer the method 
of cutting off the pay of their legislators after the prescribed 
number of days has expired, so that if they do continue to 
devote themselves still longer to the work of law-making, their 
virtue shall be its own reward. 2 Experience has, however, dis- 

i The English Parliament found the tendency of members to slip away so 
strong that in the sixteenth century it enacted " that no knight of the shire or 
burgess do depart before the end of Parliament," and inflicted on the member 
leaving without the permission of Mr. Speaker, the penalty of losing "all 
those sums of money which he should or ought to have had for his wages." 

2 Thus the Constitution of Oregon, for instance, gives its members $2 a day, 
but provides that they shall never receive more than $120 in all, thus practi- 



560 THE STATE GOVERNMENTS part ii 

closed a danger in these absolutely limited sessions. It is that 
of haste and recklessness in rushing bills through without due 
discussion. Sometimes it happens that a bill introduced in 
response to a vehement popular demand is carried with a run 
(so to speak), because the time for considering it cannot be 
extended, whereas longer consideration would have disclosed 
its dangers. An ill-framed railway bill was thus lately lost in 
the Iowa legislature because full discussion (there being no 
time-limit) brought out its weak points. Hence some States 
have largely extended their sessions. Thus California has 
recently lengthened the days during which her legislators may 
receive pay from 60 to 100 ; and Colorado in 1885 extended 
the maximum of her session from 40 to 90 days, also raising 
legislative pay from $4 to $7 per diem. 

Many recent Constitutions have tried another and probably 
a better expedient. They have made sessions less frequent. 
At one time every legislature met once a year. Now in all 
the States but five it is permitted to meet only once in two 
years. 1 Within the last fourteen years, at least seven States 
have changed their annual sessions to biennial. It does not 
appear that the interests of the commonwealths suffer by this 
suspension of the action of their chief organ of government. 2 
On the contrary, they get on so much better without a legis- 
lature that certain bold spirits ask whether the principle ought 
not to be pushed farther. As Mr. Butler says — 

" Eor a people claiming pre-eminence in the sphere of popular govern- 
ment, it seems hardly creditable that in their seeming despair of a cure 
for the chronic evils of legislation, they should be able to mitigate them 
only by making them intermittent. Under the biennial system the relief 
enjoyed in what are called the ' off-years ' seems to have reconciled the 
body politic of the several States which have adopted it to the risk of an 

cally limiting the session to forty days. Texas is a little more liberal, for her 
Constitution is content to reduce the pay after sixty days from $5 to $3 per 
day, at which reduced rate members may apparently go on as long as they 
please. All the States which fix a limit of time are Southern or Western, except 
Pennsylvania and Maryland, whose legislatures certainly need every check 
that can he applied. The forty days' session of Georgia may be extended by a 
two-thirds vote of an absolute majority of each House. 

1 But sometimes the legislature by adjourning gives itself a second session. 

2 The members, however, being usually new to the work, are rawer and 
positively more dangerous when their term includes only one session than 
they are in a second session where there are two. 



chap, xlv REMEDIES FOR THEIR FAULTS 561 

aggravation of the malady when the legislative year conies ronnd and 
the old symptoms recur. 

"The secretaries of State (of the several States) with whom I have 
communicated concur in certifying that no public inconvenience is caused 
by the biennial system ; and one of them, of the State of Nebraska, in 
answer to my query if biennial sessions occasion any public incon- 
venience, writes ' None whatever. The public interests would be better 
subserved by having legislative sessions held only once in four years.' " 

The Americans seem to reason thus : " Since a legislature is 
very far gone from righteousness, and of its own nature in- 
clined to do evil, the less chance it has of doing evil the better. 
If it meei^s, it will pass bad laws. Let us therefore prevent it 
from meeting." 

They are no doubt right as practical men. They are con- 
sistent, as sons of the Puritans, in their application of the 
doctrine of original sin. But this is a rather pitiful result for 
self-governing democracj 7 to have arrived at. 

"Is there not," some one may ask, "a simpler remedy? 
Why all these efforts to deal with the various symptoms of the 
malady, instead of striking at the root of the malady itself ? 
Why not reform the legislatures by inducing good men to 
enter them, and keeping a more constantly vigilant public 
opinion fixed upon them ? " 

The answer to this very pertinent question will be found in 
the chapters of Part III. which follow. I will only so far 
anticipate what is there stated as to observe that the better 
citizens have found it so difficult and troublesome to reform 
the legislatures that they have concluded to be content with 
curing such and so many symptoms as they can find medicines 
for, and waiting to see in what new direction the virus will 
work. " After all," they say, " the disease, though it is pain- 
ful and vexing, does not endanger the life of the patient, does 
not even diminish his strength. The worst that the legis- 
latures can do is to waste some money, and try some foolish 
experiments from which the good sense of the people will 
presently withdraw. Every one has his crosses to bear, and 
ours are comparatively light." All which is true enough, but 
ignores two important features in the situation, one, that the 
constitutional organs of government become constantly more 
discredited, the other that the tremendous influence exerted 
VOL. i 20 



562 THE STATE GOVERNMENTS . part ii 

by wealth and the misuse of public rights permitted to capital- 
ists, and especially to companies, have created among the 
masses of the people ideas which may break out in demands 
for legislation of a new and dangerous kind. 

The survey of the State governments which we have now 
completed suggests several reflections. 

One of these is that the political importance of the States 
is no longer what it was in the early days of the Eepublic. 
Although the States have grown enormously in wealth and 
population, they have declined relatively to the central gov- 
ernment. The excellence of State laws and the merits of a 
State administration make less difference to the inhabitants 
than formerly, because the hand of the National government 
is more frequently felt. The questions which the State deals 
with, largely as they influence the welfare of the citizen, do 
not touch his imagination like those which Congress handles, 
because the latter determine the relations of the Eepublic to 
the rest of the world, and affect all the area that lies between 
the two oceans. The State set out as an isolated and self- 
sufficing commonwealth. It is now merely a part of a far 
grander whole, which seems to be slowly absorbing its func- 
tions and stunting its growth, as the great tree stunts the 
shrubs over which its spreading boughs have begun to cast 
their shade. 

I do not mean to say that the people have ceased to care for 
their States ; far from it. They are proud of their States, 
even where there may be little to be proud of. That passion- 
ate love of competition which possesses English-speaking men, 
makes them eager that their State should surpass the neigh- 
bouring States in the number of the clocks it makes, the 
hogs it kills, the pumpkins it rears, that their particular star 
should shine at least as brightly as the other forty-three in 
the national flag. But if these commonwealths meant to their 
citizens what they did in the days of the Revolution, if they 
commanded an equal measure of their loyalty, and influenced 
as largely their individual welfare, the State legislatures 
would not be left to professionals or third-rate men. The 
truth is that the State has shrivelled up. It retains its old 
legal powers over the citizens, its old legal rights as against 
the central government. But it does not interest its citizens 



chap, xlv REMEDIES EOR THEIR FAULTS 563 

as it once did. Men do not now say, like Ames in 1782, that 
their State is their country. 1 And as the central gpvernment 
overshadows it in one direction, so the great cities have en- 
croached upon it in another. The population of a single city 
is sometimes a fourth or a fifth part of the whole population 
of the State ; and city questions interest this population more 
than State questions do ; city officials have begun to rival or 
even to dwarf State officials. 

Observe, however, that while the growth of the Union has 
relatively dwarfed the State, the absolute increase of the State 
in population has changed the character of the State itself. 
In 1790 seven of the thirteen original States had each of them 
less than 300,000, only one more than 500,000 inhabitants. 
Now twenty-seven have more than 1,000,000 each, and nine of 
these more than 2,000,000. We must expect to find that, in 
spite of railroads and telegraphs, the individual citizens will 
know less of one another, will have less personal acquaintance 
with their leading men, and less personal interest in the affairs 
of the community than in the old days when the State was no 
more populous than an English county like Bedford or Somer- 
set. Thus the special advantages of local government have to 
a large extent vanished from the American States of to-day. 
They are local bodies in the sense of having no great imperial 
interests to fire men's minds. They are not local in the sense 
of giving their members a familiar knowledge and a lively in- 
terest in the management of their affairs. Hamilton may have 
been right in thinking that the large States ought to be sub- 
divided. 2 At any rate it is to this want of direct local interest 

1 So even in 1811, Josiah Quincy said in Congress: "Sir, I confess it, the 
first public love of my heart is the Commonwealth of Massachusetts. There 
is my fireside : there are the tombs of my ancestors." 

2 It is, however, also argued that there are some large States in which the 
mischievous action of the multitude of a great city is held in check by the 
steadier rural voters. If such States had been subdivided, the subdivision 
which happened to contain the great city would lie at the mercy of this multi- 
tude. The question has not taken practical shape, for no State has yet asked 
to be divided, though there is at present a movement to divide Kansas into 
two States by a N. and S. line. 

Texas is the only State which, possesses (under the statute admitting her) 
a right to divide herself into several States without obtaining permission from 
Congress. 

Hamilton's reason seems to have been a fear that the States would be too 
strong for the National government. 



564 THE STATE GOVERNMENTS part ii 

on the part of the people, that some of the faults of their 
legislatures may be ascribed. 

The chief lesson which a study of the more vicious among 
the State legislatures teaches, is that power does not necessa- 
rily bring responsibility in its train. I should be ashamed to 
write down so bald a platitude, were it not one of those plati- 
tudes which are constantly forgotten or ignored. People who 
know well enough that, in private life, wealth or rank or any 
other kind of power is as likely to mar a man as to make him, 
to lower as to raise his sense of duty, have nevertheless con- 
tracted the habit of talking as if human nature changed when 
it entered public life, as if the mere possession of public func- 
tions, whether of voting or of legislating, tended of itself to 
secure their proper exercise. We know that power does not 
purify men in despotic governments, but we talk as if it did 
so in free governments. Every one would of course admit, if 
the point were put flatly to him, that power alone is not 
enough, but that there must be added to power, in the case of 
the voter, a direct interest in the choice of good men, in the 
case of the legislator, responsibility to the voters, in the case 
of both, a measure of enlightenment and honour. What the 
legislatures of the worst States show is not merely the need 
for the existence of a sound public opinion, for such a public 
opinion exists, but the need for methods by which it can be 
brought into efficient action upon representatives, who, if they 
are left to themselves, and are not individually persons with a 
sense of honour and a character to lose, will be at least as bad 
in public life as they could be in private. The greatness of 
the scale on which they act, and of the material interests they 
control, will do little to inspire them. New York and Penn- 
sylvania are by far the largest and wealthiest States in the 
Union. Their legislatures are confessedly among the worst. 



CHAPTER XL VI 

STATE POLITICS 

In the last preceding chapters I have attempted to describe 
first the structure of the machinery of State governments, and 
then this machinery in motion as well as at rest, — that is to 
say, the actual working of the various departments in their 
relations to one another. We may now ask, What is the mo- 
tive power which sets and keeps these wheels and pistons 
going ? What is the steam that drives the machine ? 

The steam is supplied by the political parties. In speaking 
of the parties I must, to some slight extent, anticipate what 
will be more fully explained in Part III. : but it seems worth 
while to incur this inconvenience for the sake of bringing 
together all that refers specially to the States, and of complet- 
ing the picture of their political life. 1 

The States evidently present some singular conditions for 
the development of a party system. They are self-governing 
communities with large legislative and administrative powers, 
existing inside a much greater community of which they are 
for many purposes independent. They must have parties, and 
this community, the Federal Union, has also parties. What is 
the relation of the one set of parties to the other ? 

There are three kinds of relations possible, viz. — 

Each State might have a party of its own, entirely uncon- 
nected with the national parties, but created by State issues — 
i.e. advocating or opposing measures which fall within the 
exclusive competence of the State. 

Each State might have parties which, while based upon State 
issues, were influenced by the national parties, and in some sort 
of affiliation with the latter. 

1 Many readers may find it better to skip this chapter until they have read 
those which follow (Chapters LIII.-LVI.) upon the history, tenets, and pres- 
ent condition of the great national parties. 

565 



566 THE STATE GOVERNMENTS part ii 

The parties in each State might be merely local subdivisions 
of the national parties, the national issues and organizations 
swallowing up, or rather pushing aside, the State issues and 
the organizations formed to deal with them. 

The nature of the State governments would lead us to expect 
to find the first of these relations existing. The sphere of the 
State is different, some few topics of concurrent jurisdiction 
excepted, from that of the National government. What the 
State can deal with, the National government cannot touch. 
What the National government can deal with lies beyond the 
province of the State. The State governor and legislature are 
elected without relation to the President and Congress, and 
when elected have nothing to do with those authorities. Hence 
a question fit to be debated and voted upon in Congress can 
seldom be a question fit to be also debated and voted upon in a 
State legislature, and the party formed for advocating its pas- 
sage through Congress will have no scope for similar action 
within a State, while on the other hand a State party, seeking 
to carry some State law, will have no motive for approaching 
Congress, which can neither help it nor hurt it. The great 
questions which have divided the Union since its foundation, 
and on which national parties have been based, have been ques- 
tions of foreign policy, of the creation of a national bank, of 
a protective tariff, of the extension of slavery, of the recon- 
struction of the South after the war. With none of these had 
a State legislature any title to deal : all lay within the Federal 
sphere. So at this moment the questions of currency and tariff 
reform, which are among the most important questions before 
the country, are outside the province of the State governments. 
We might therefore expect that the State parties would be as 
distinct from the national parties as are the State governments 
from the Federal. 

The contrary has happened. The national parties have en- 
gulfed the State parties. The latter have disappeared abso- 
lutely as independent bodies, and survive merely as branches 
of the national parties, working each in its own State for the 
tenets and purposes which a national party professes and seeks 
to attain. So much is this the case that one may say that a 
State party has rarely any marked local colour, that it is seldom 
and then but slightly the result of a compromise between State 



chap, xlvi STATE POLITICS 567 

issues and national issues, such as I have indicated in suggest- 
ing the second form of possible relation. The national issues 
have thrown matters of State competence entirely into the 
shade, and have done so almost from the foundation of the 
Republic. The local parties which existed in 1789 in most or 
all of the States were soon absorbed into the Federalists and 
Democratic Republicans who sprang into life after the adop- 
tion of the Federal Constitution. 

The results of this phenomenon have been so important that 
we may stop to examine its causes. 

Within four years from their origin, the strife of the two 
great national parties became intense over the whole Union. 
From 1793 till 1815 grave issues of foreign policy, complicated 
with issues of domestic policy, stirred men to fierce passion and 
strenuous effort. State business, being more commonplace, ex- 
citing less feeling, awakening no interest outside State bounda- 
ries, fell into the background. The leaders who won fame and 
followers were national leaders ; and a leader came to care for 
his influence within his State chiefly as a means of gaining 
strength in the wider national field. Even so restlessly active 
and versatile a people as the Americans cannot feel warmly 
about two sets of diverse interests at the same time, cannot 
create and work simultaneously two distinct and unconnected 
party organizations. The State, therefore, had, to use the 
transatlantic phrase, "to take the back seat." Before 1815 
the process was complete ; the dividing lines between parties 
in every State were those drawn by national questions. And 
from 1827 down to 1877 the renewed keenness of party war- 
fare kept these parties constantly on the stretch, and forced 
them to use all the support they could win in a State for the 
purposes of the national struggle. 

There was one way in which predominance in a State could 
be so directly used. The Federal senators are chosen by the 
State legislatures. The party therefore which gains a majority 
in the State legislature gains two seats in the smaller and more 
powerful branch of Congress. As parties in Congress are gen- 
erally pretty equally balanced, this advantage is well worth 
fighting for, and is a constant spur to the efforts of national 
politicians to carry the State elections in a particular State. 
Besides, in America, above all countries, nothing succeeds like 



568 THE STATE GOVERNMENTS part ii 

success ; and in each State the party which carries the State 
elections is held likely to carry the elections for the national 
House of Representatives, and for the President also. 

Moreover, there are the offices. The Federal offices in each 
State are very numerous. They are in the gift of whichever 
national party happens to be in power, i.e. counts among its 
members the President for the time being. He bestows them 
upon those who in each State have worked hardest for the 
national party there. Thus the influence of Washington and 
its presiding deities is everywhere felt, and even the party 
which is in a minority in a particular State, and therefore loses 
its share of the State offices, is cheered and fed by morsels of 
patronage from the national table. The national parties are in 
fact all-pervasive, and leave little room for the growth of any 
other groupings or organizations. A purely State party, indif- 
ferent to national issues, would, if it were started now, have no 
support from outside, would have few posts to bestow, because 
the State offices are neither numerous nor well paid, could have 
no pledge of permanence such as the vast mechanism of the 
national parties provides, would offer little prospect of aiding 
its leaders to win wealth or fame in the wider theatre of Con- 
gress. 

Accordingly the national parties have complete possession 
of the field. In every State from Maine to Texas all State 
elections for the governorship and other offices are fought on 
their lines; all State legislatures are divided into members 
belonging to one or other of them. Every trial of strength in 
a State election is assumed to presage a similar result in a 
national election. Every State office is deemed as fitting a 
reward for services to the national party as for services in 
State contests. In fact the whole machinery is worked exactly 
as if the State were merely a subdivision of the Union for elec- 
toral purposes. Yet nearly all the questions which come 
before State legislatures have nothing whatever to do with the 
tenets of the national parties, while votes of State legislatures, 
except in respect of the choice of senators, can neither advance 
nor retard the progress of any cause which lies within the com- 
petence of Congress. 

How has this system affected the working of the State gov- 
ernments, and especially of their legislatures ? 



chap, xlvi STATE POLITICS 569 

It has prevented the growth within a State of State parties 
addressing themselves to the questions which belong to its legis- 
lature, and really affect its welfare. 

The natural source of a party is a common belief, a common 
aim and purpose. For this men league themselves together, 
and agree to act in concert. A State party ought therefore to 
be formed out of persons who desire the State to do something, 
or not to do it; to pass such and such a law, to grant money to 
such and such an object. It is, however, formed with reference 
to no such aim or purpose, but to matters which the State can- 
not influence. Hence a singular unreality in the State parties. 
In most of the legislatures as well as through the electoral 
districts they cohere very closely. But this cohesion is of no 
service or significance for nine-tenths of the questions that 
come before the legislature for its decision, seeing that such 
questions are not touched by the platform of either party. 
Party, therefore, does not fulfil its legitimate ends. It does not 
produce the co-operation of leaders in preparing, of followers in 
supporting, a measure or line of policy. It does not secure the 
keen criticism by either side of the measures or policy advo- 
cated by the other. It is an artificial aggregation of persons 
linked together for purposes unconnected with the work they 
have to do. 

This state of things may seem to possess the advantage of 
permitting questions to be considered on their merits, apart 
from that spirit of faction which in England, for instance, dis- 
poses the men on one side to reject a proposal of the other side 
on the score, not of its demerits, but of the quarter it proceeds 
from. Such an advantage would certainly exist if members 
were elected to the State legislatures irrespective of party, if 
the practice was to look out for good men who would manage 
State business prudently and pass useful laws. This, however, 
is not the practice. The strength of the national parties pre- 
vents it. Every member is elected as a party man ; and the 
experiment of legislatures working without parties has as little 
chance of being tried in the several States as in Congress itself. 
There is yet another benefit which the plan seems to promise. 
The State legislatures may seem a narrow sphere for an enter- 
prising genius, and their work uninteresting to a superior mind. 
But if they lead into the larger field of national politics, if dis- 



570 THE STATE GOVERNMENTS part ii 

tinction in them opens the door to a fame and power extending 
over the country, able men will seek to enter and to shine in 
the legislatures of the States. This is the same argument as 
is used by those who defend the practice, now general in Eng- 
land, of fighting municipal and other local elections on party 
lines. Better men, it is said, are glad to enter the town coun- 
cils than could otherwise be induced to do so, because in doing 
so they serve the party, and establish a claim on it, they com- 
mend themselves to their fellow-citizens as fit candidates for 
Parliament. The possible loss of not getting a good set of 
town councillors irrespective of party lines is thought to be 
more than compensated by the certain gain of men whose ambi- 
tion would overlook a town council, were it not thus made a 
stage in their political career. This case is the more like that 
of America because these English municipal bodies have rarely 
anything to do with the issues which divide the two great 
English parties. Men are elected to them as Tories or Liberals 
whose Toryism or Liberalism is utterly indifferent so far as 
the business of the council goes. 

Whether or no this reasoning be sound as regards England, 
I doubt if the American legislatures gain in efficiency by hav- 
ing only party men in them, and whether the elections would 
be any worse cared for if party was a secondary idea in the 
voters' minds. Already these elections are entirely in the 
hands of party managers, to whom intellect and knowledge 
do not commend an aspirant, any more than does character. 
Experience in a State legislature certainly gives a politician 
good chances of seeing behind the scenes, and makes him 
familiar with the methods employed by professionals. But it 
affords few opportunities for distinction in the higher walks 
of public life, and it is as likely to lower as to raise his apti- 
tude for them. However, a good many men find their way 
into Congress through the State legislatures — though it is no 
longer the rule that persons chosen Federal senators by those 
bodies must have served in them — and perhaps the average 
capacity of members is kept up by the presence of persons who 
seek to use the State legislature as a stepping-stone to some- 
thing further. The question is purely speculative. Party has 
dominated and will dominate all State elections. Under exist- 
ing conditions the thing cannot be otherwise. 



chap, xl vi STATE POLITICS 571 

It is, however, obviously impossible to treat as party matters 
many of the questions that come before the legislatures. Local 
and personal bills, which, it will be remembered, occupy by far 
the larger part of the time and labours of these bodies, do not 
fall within party lines at all. The only difference the party 
system makes to them is that a party leader who takes up such 
a bill has exceptional facilities for putting it through, and that 
a district which returns a member belonging to the majority 
has some advantage when trying to secure a benefit for itself. 
It is the same with appropriations of State funds to any local 
purpose. Members use their party influence and party affilia- 
tions ; but the advocacy of such schemes and opposition to 
them have comparatively little to do with party divisions, and 
it constantly happens that men of both parties are found 
combining to carry some project by which they or their con- 
stituents will gain. Of course the less reputable a member is, 
the more apt will he be to enter into "rings" which have 
nothing to do with politics in their proper sense, the more 
ready to scheme with any trickster, to whichever party he 
adheres. Of measures belonging to what may be called gen- 
uine legislation, i.e. measures for improving the general law 
and administration of the State, some are so remote from 
any party issue, and so unlikely to enure to the credit of either 
party, that they are considered on their merits. A bill, for 
instance, for improving the State lunatic asylums, or forbid- 
ding lotteries, or restricting the freedom of divorce, would 
have nothing either to hope or to fear from party action. It 
would be introduced by some member who desired reform for 
its own sake, and would be passed if this member, having con- 
vinced the more enlightened among his colleagues that it 
would do good, or his colleagues generally that the people 
wished it, could overcome the difficulties which the pressure 
of a crowd of competing bills is sure to place in its way. 
Other public measures, however, may excite popular feeling, 
may be demanded by one class or section of opinion and 
resisted by another. Bills dealing with the sale of intoxi- 
cants, or regulating the hours of labour, or attacking railway 
companies, or prohibiting the sale of oleomargarine as butter, 
are matters of such keen interest to some one section of the 
population, that a party will gain support from many citizens 



572 THE STATE GOVERNMENTS part ii 

by espousing them, and may possibly estrange others. Hence, 
though such bills have rarely any connection with the tenets 
of either party, it is worth the while of a party to win votes 
by throwing its weight for or against them, according as it 
judges that there is more to gain by taking the one course or 
the other. In the case of oleomargarine, for instance, there 
was clearly more to be gained by supporting than by opposing, 
because the farmers, especially in the agricultural North- West, 
constitute a much stronger vote than any persons who could 
suffer by restricting the sale of the substance. We should 
accordingly expect to find, and observers did in fact find, both 
parties competing for the honour of passing such a bill. There 
was a race between a number of members, anxious to gain 
credit for themselves and their friends. Intoxicants open up a 
more difficult problem. Strong as the Prohibitionists and local 
option men are in all the northern and western, as well as in 
some of the southern States, the Germans, not to speak of the 
Irish and the liquor dealers, are in many States also so strong, 
and so fond of their beer, that it is a hazardous thing for a 
party to hoist the anti-liquor flag. Accordingly both parties 
are apt to fence with this question. Speaking broadly, there- 
fore, these questions of general State legislation are not party 
questions, though liable at any moment to become so, if one or 
other party takes them up. 

Is there then no such thing as a real State party, agitating or 
working solely within State limits, and inscribing on its banner 
a principle or project which State legislation can advance ? 

Such a party does sometimes arise. In California, for in- 
stance, there has long been strong feeling against the Chinese, 
and a desire to exclude them. Both Republicans and Demo- 
crats were affected by the feeling, and fell in with it. But 
there sprang up fifteen years ago a third party, which claimed 
to be specially "anti-Mongolian," while also attacking capital- 
ists and railways ; and it lasted for some time, confusing the 
politics of the State. Questions affecting the canals of the 
State became at one time a powerful factor in the parties of 
New York. In Virginia the question of repudiating the State 
debt gave birth a few years ago to a party which called itself 
the "Readjusters," and by the help of negro votes carried the 
State at several elections. In some of the North- Western 



chap, xlvi STATE POLITICS 573 

States the farmers associated themselves in societies called 
"Granges," purporting to be formed for the promotion of 
agriculture, and created a Granger party, which secured drastic 
legislation against the railroad companies and other so-called 
monopolists. The same forces acting over a still wider area 
have lately produced the so-called Farmers' Alliance, which 
figured so prominently in the congressional elections of 1890, 
and under the name of the People's Party, in those of 1892. 
And in most States there now exists an active Prohibitionist 
party, which agitates for the strengthening and better enforce- 
ment of laws restricting or forbidding the sale of intoxicants. 
It deems itself also a national party, since it has an organiza- 
tion which covers a great part of the Union. But its opera- 
tions are far more active in the States, because the liquor 
traffic belongs to State legislation. 1 Since, however, it can 
rarely secure many members in a State legislature, it acts 
chiefly by influencing the existing parties, and frightening 
them into pretending to meet its wishes. 

All these groups or factions were or are associated on the 
basis of some doctrine or practical proposal which they put 
forward. But it sometimes also happens that, without any 
such basis, a party is formed in a State inside one of the 
regular national parties ; or, in other words, that the national 
party in the State splits up into two factions, probably more 
embittered against each other than against the other regular 
party. Such State factions, for they hardly deserve to be 
called parties, generally arise from, or soon become coloured 
by, the rivalries of leaders, each of whom draws a certain 
number of politicians with him. .New York is the State that 
has seen most of them ; and in it they have tended of late 
years to grow more distinctly personal. The Hunkers and 
Barnburners who divided the Democratic party some forty 
years ago, and subsequently passed into the " Hards " and the 
" Softs," began in genuine differences of opinion about canal 
management and other State questions. 2 The " Stalwart " and 

1 Congress has of course power to impose, and has imposed, an excise upon 
liquor, but this is far from meeting the demands of the temperance party. 

2 The names of these factions, the changes they pass through, and the way 
in which they immediately get involved with the ambitions and antipathies of 
particular leaders, recall the factions in the Italian cities of the thirteenth and 
fourteenth centuries, such as the White and Black Guelfs of Florence in the 
time of Dante. 



574 THE STATE GOVERNMENTS part ii 

"Half-breed" sections of the Eepublican party in the same 
State, whose bitter feuds amused the country a few years ago, 
were mere factions, each attached to a leader, or group of 
leaders, but without distinctive principles. 

It will be seen from this fact, as well as from others given 
in the preceding chapter, that the dignity and magnitude of 
State politics have declined. They have become more pacific 
in methods, but less serious and more personal in their aims. 
In old days the State had real political struggles, in which 
men sometimes took up arms. There was a rebellion in Mas- 
sachusetts in 1786-87, which it needed some smart fighting to 
put down, and another in Rhode Island in 1842, due to the 
discontent of the masses with the then existing Constitution. 1 
The battles of this generation are fought at the polling-booths, 
though sometimes won in the rooms where the votes are 
counted by partisan - officials. That heads are counted instead 
of being broken is no doubt an improvement. But these 
struggles do not always stir the blood of the people as those 
of the old time did : they seem to evoke less patriotic interest 
in the State, less public spirit for securing her good govern- 
ment. 

This change does not necessarily indicate a feebler sense of 
political duty. It is due to that shrivelling up of the State to 
which I referred in last chapter. A century ago the State was 
a commonwealth comparable to an Italian republic like Bologna 
or Siena, or one of the German free imperial cities of the mid- 
dle ages, to Liibeck, for instance, or to Nurnberg, which, though 
it formed part of the Empire, had a genuine and vigorous 
political life of its own, in which the faiths, hopes, passions of 
the citizens were involved. Nowadays the facilities of com- 
munication, the movements of trade, the unprecedented diffu- 
sion of literature, and, perhaps not least, the dominance of the 
great national parties, whose full tide swells all the creeks and 

1 In these miniature civil wars there was a tendency for the city folk to be on 
one side and the agriculturists on the other, a phenomenon which was observed 
long ago in Greece, where the aristocratic party lived in the city and the poor 
in the fields. In the sixth century B.C. the oligarchic poet Theognis mourned 
over the degradation of political life which had followed the intrusion of the 
country churls. The hostility of the urhan and rural population sometimes 
recurs in Switzerland. The country people of the canton of Basil fought a 
bloody battle some years ago with the people of the city, and the little com- 
monwealth had to be subdivided into two, Basil City and Basil Country. 



chap, xl vi STATE POLITICS 575 

inlets of a State no less than the mid channel of national poli- 
tics at Washington, have drawn the minds of the masses as 
well as of the more enlightened citizens away from the State 
legislatures, whose functions have come to seem trivial and 
their strifes petty. 1 

In saying this I do not mean to withdraw or modify what 
was said, in an earlier chapter, of the greatness of an American 
State, and the attachment of its inhabitants to it. Those prop- 
ositions are, I believe, true of a State as compared to any local 
division of any European country, the cantons of Switzerland 
excepted. I am here speaking of a State as compared with the 
nation, and of men's feelings towards their State to-day as com- 
pared with the feelings of a century ago. I am, moreover, 
speaking not so much of sentimental loyalty to the State, con- 
sidered as a whole, for this is still strong, but of the practical 
interest taken in its government. Even in Great Britain 
many a man is proud of his city, of Edinburgh say, or of Man- 
chester, who takes only the slenderest interest in the manage- 
ment of its current business. 

'There is indeed some resemblance between the attitude of 
the inhabitants of a great English town towards their municipal 
government and that of the people of a State to their State 
government. The proceedings of English town councils are 
little followed or regarded either by the wealthier or the poorer 
residents. The humble voter does not know or care who is 
mayor. The head of a great mercantile house never thinks of 
offering himself for such a post. In London the Metropolitan 
Board of Works raised and spent a vast revenue ; but its dis- 
cussions were commented on in the newspapers only four or 
five times a year, and very few persons of good social standing 
were to be found among its members. Allowing for the con- 
trast between the English bodies, with their strictly limited 
powers, and the immense competence of an American State 
legislature, this English phenomenon is sufficiently like those 
of America to be w r orth taking as an illustration. 

1 Similar feelings made the three last surviving Hanseatic free cities will- 
ingly resign their independence to become members of the new German Em- 
pire, because the sentiment of pan-Germanic patriotism had so overborne the 
old fondness for local independence, that no regret was felt in resigning part of 
the latter in order to secure a share in fuller national life of the great German 
State. 



576 THE STATE GOVERNMENTS 



We may accordingly say that the average American voter, 
belonging to the labouring or farming or shopkeeping class, 
troubles himself little about the conduct of State business. 
He votes the party ticket at elections as a good party man, and 
is pleased when his party wins. When a question comes up 
which interests him, like that of canal management, or the 
regulation of railway rates, or a limitation of the hours of 
labour, he is eager to use his vote, and watches what passes in 
the legislature. He is sometimes excited over a contest for 
the governorship, and if the candidate of the other party is a 
stronger and more honest man, may possibly desert his party 
on that one issue. But in ordinary times he follows the pro- 
ceedings of the legislature so little that an American humour- 
ist, describing the initial stages of dotage, observes that the 
poor old man took to filing the reports of the debates in his 
State legislature. The politics which the voter reads by pref- 
erence are national politics ; and especially whatever touches 
the next presidential election. In State contests that which 
chiefly fixes his attention is the influence of a State victory on 
an approaching national contest. 

The more educated and thoughtful citizen, especially in great 
States, like New York and Pennsylvania, is apt to be disgusted 
by the sordidness of many State politicians and the pettiness 
of most. He regards Albany and Harrisburg much as he re- 
gards a wasps' nest in one of the trees of his suburban garden. 
The insects eat his fruit, and may sting his children ; but it is 
too much trouble to set up a ladder and try to reach them. 
Some public-spirited young men have, however, occasionally 
thrown themselves into the muddy whirlpool of the New York 
legislature, chiefly for the sake of carrying Acts for the better 
government of cities. When the tenacity of such men proves 
equal to their courage, they gain in time the active support of 
those who have hitherto stood aloof, regarding State politics 
as a squabble over offices and jobs. By the help of the press 
they are sometimes able to carry measures such as an im- 
proved Ballot Act, or an Act for checking- expenditure at elec- 
tions which is not only valuable in their own State but sets 
an example which other States are apt to follow. But the 
prevalence of the rule that a man can be elected only in the 
district where he lives, renders it difficult permanently to main- 



chap, xlvi STATE POLITICS 577 

tain a reforming party in a legislature, so those who, instead 
of shrugging their shoulders put them to the wheel, generally 
prefer to carry their energies into the field of national politics, 
thinking that larger and swifter results are to be obtained 
there, because victories achieved in and through the National 
government have an immediate moral influence upon the coun- 
try at large. 

A European observer, sympathetic with the aims of the 
reformers, is inclined to think that the battle for honest gov- 
ernment ought to be fought everywhere, in State legislatures 
and city councils as well as in the national elections and in 
the press, and is at first surprised that so much effort should 
be needed to secure what all good citizens, to whichever party 
they belong, might be expected to work for. But he would be 
indeed a self-confident European who should fancy he had 
discovered anything which had not already occurred to his 
shrewd American friends; and the longer such an observer 
studies the problem, the better does he learn to appreciate the 
difficulties which the system of party organization, which I 
must presently proceed to describe, throws in the way of all 
reforming efforts. 



VOL. i 2 p 



CHAPTER XL VII 

THE TERRITORIES 

Of the 3,501,404 square miles which constitute the area of 
the United States, 2,582,535 are included within the bounds 
of the forty-four States whose government has been described 
in the last preceding chapters. The 918,869 square miles 
which remain fall into the three following divisions : — 

Four organized Territories, viz. : — Sq. Miles. 

Utah, Arizona, New Mexico, Oklahoma 359,600 

Two unorganized Territories, viz. : — 

Alaska 531,409 

Indian Territory, west of Arkansas 31,400 

The Federal District of Columbia 70 

Of these the three latter may be dismissed in a word or two. 
The District of Columbia is a piece of land set apart to con- 
tain the city of Washington, which is the seat of the Federal 
government. It is governed by three commissioners appointed 
by the President, and has no local legislature nor municipal 
government, the only legislative authority being Congress. 

Alaska (population in 1890, 31,795, of whom 4303 were 
whites and 23,274 Indians) and the Indian Territory are also 
under the direct authority of officers appointed by the Presi- 
dent and of laws passed by Congress. Both are chiefly inhab- 
ited by Indian tribes, some of which, however, in the Indian 
Territory, and particularly the Cherokees, have made consid- 
erable progress in civilization. 1 Neither region is likely for a 
long time to come to receive regular political institutions. 

1 There are five civilized tribes in this territory, Cherokees, Choetaws, 

Chickasaws, Creeks, and Seminoles. "Each tribe manages its own affairs 

under a constitution modelled upon that of the United States. Each lias a 

common school system, including schools for advanced instruction, all sup- 

578 



chap, xlvii THE TERKITORIES 579 

Until 1889, the organized Territories, eight in number, 
formed a broad belt of country extending from Canada on the 
north to Mexico on the south, and separating the States of 
the Mississippi valley from those of the Pacific slope. In that 
year Congress passed Acts under which three of them, Dakota 
(which divided itself into North Dakota and South Dakota), 
Montana, and Washington became entitled to be admitted as 
States ; while in 1890 two others (Idaho and Wyoming) were 
similarly permitted to become States. These have now (1892) 
enacted Constitutions and thereby organized themselves as 
States. They are the six States of North Dakota, South 
Dakota, Montana, Washington, Idaho, and Wyoming. To the 
three remaining Territories one has been added by the carving 
out of Oklahoma, in 1890, from the Indian Territory. These 
four require some description, because they present an inter- 
esting form of autonomy or local self-government, differing 
from that which exists in the several States, and in some 
points more akin to that of the self-governing colonies of 
Great Britain. This form has in each Territory been created 
by Federal statutes, beginning with the great Ordinance for 
the Government of the Territory of the United States north- 
west of the River Ohio, passed by the Congress of the Confed- 
eration in 1787. Since that year many Territories have been 
organized, by different statutes and on different plans, out of 
the western dominions of the United States, under the gen- 
eral power conferred upon Congress by the Federal Constitu- 
tion (Art. iv. § 3) : and all but the above-mentioned four have 
now become States. At first local legislative power was 
vested in the Governor and the judges ; it is now exercised 
by an elective legislature. The present organization of the 
four that remain is in most respects identical ; and in describ- 
ing it I shall ignore minor differences. 

The fundamental law of every Territory, as of every State, 
is the Federal Constitution; but whereas every State has also 
its own popularly enacted State Constitution, the Territories 

ported by the Indians themselves. The agent of the National Indian Defence 
Association says that there is not in the Cherokee Nation a single Indian of 
either sex over fifteen years of age who cannot read or write." — Report of the 
U. S. Commissioner of Education, 1886. The census of 1890 gives the total num- 
bers of these tribes at 66,289, of whom 52,065 are pure Indians. The total num- 
ber of Indians in the United States (excluding Alaska) is returned at 249,273. 



580 THE STATE GOVERNMENTS part ii 

are not regulated by any similar instruments, which for them 
are replaced by the Federal statutes establishing their govern- 
ment and prescribing its form. However, some Territories 
have created a sort of rudimentary constitution by enacting a 
Bill of Eights. 1 

In every Territory, as in every State, the executive, legisla- 
tive, and judicial departments are kept distinct. The Execu- 
tive consists of a governor appointed for four years by the 
President of the United States, with the consent of the Sen- 
ate, and removable by the President, together with a secre- 
tary, treasurer, auditor, and usually also a superintendent of 
public instruction, and a librarian. The governor commands 
the militia, and has a veto upon the acts of the legislature, 
which, however, may (except in Utah and Arizona) be over- 
ridden by a two-thirds majority in each house. He is respon- 
sible to the Federal government, and reports yearly to the 
President on the condition of the Territory, often making his 
report a sort of prospectus in which the advantages which his 
dominions offer to intending immigrants are fondly set forth. 
He also sends a message to the legislature at the beginning of 
each session. Important as the post of Governor is, it is often 
bestowed as a mere piece of party patronage, with no great 
regard to the fitness of the appointee. 

The Legislature is composed of two Houses, a Council of 
twelve (in Oklahoma thirteen) persons, and a House of Repre- 
sentatives of twenty-four (in Oklahoma twenty-six) persons, 
elected by districts. Each is elected by the voters of the Ter- 
ritory for two years, and sits only once in that period. The 
session is limited (by Federal statutes) to sixty days, and 
the salary of a member is $4 per day. The Houses work 
much like those in the States, doing the bulk of their business 
by standing committees, and frequently suspending their rules 
to run measures through with little or no debate. The electo- 
ral franchise is left to be fixed by Territorial statute, but Fed- 
eral statutes prescribe that every member shall be resident in 
the district he represents. The sphere of legislation allowed 
to the legislature is wide, indeed practically as wide as that 

i Arizona, in providing that her Bill of Rights shall be changeable only by 
the vote of a majority of all the members elected to the Territorial legislature 
gives it a species of rigidity. 



chap, xlvii THE TERRITORIES 581 

enjoyed by the legislature of a State, but subject to certain 
Federal restrictions. 1 It is subject also to the still more 
important right of Congress to annul or modify by its own 
statutes any Territorial act. In some Territories every act 
was directed to be submitted to Congress for its approval, and, 
if disapproved, to be of no effect ; in others submission has 
not been required. But in all Congress may exercise without 
stint its power to override the statutes passed by a Territorial 
legislature, as the British Parliament may override those of a 
self-governing colony. This power is not largely or often exer- 
cised. The most remarkable instance has been furnished by 
Utah, where congressional legislation has had a hard fight in 
breaking down polygamy, finding it necessary even to impose 
a test oath upon voters. 

The Judiciary consists of three or more judges of a Supreme 
Court, appointed for four years by the President, with the con- 
sent of the Senate (salary $3000), together with a U. S. dis- 
trict attorney and a U. S. marshal. The law they administer 
is partly Federal, all Federal statutes being construed to take 
effect, where properly applicable, in the Territories, partly 
local, created in each Territory by its own statutes ; and ap- 
peals, where the sum in dispute is above a certain value, go to 
the Supreme Federal Court. Although these courts are created 
by Congress in pursuance of its general sovereignty — they do 
not fall within the provisions of the Constitution for a Federal 
judiciary — the Territorial legislature is allowed to regulate 
their practice and procedure. The expenses of Territorial gov- 
ernments are borne by the Federal treasury. 

The Territories send neither senators nor representatives to 
Congress, nor do they take part in presidential elections. The 

1 Revised Statutes of U. S. of 1878, § 1851. — "The legislative power of 
every Territory shall extend to all rightful subjects of legislation not incon- 
sistent with the Constitution and laws of the United States. But no law shall 
be passed interfering with the primary disposal of the soil ; no tax shall be 
imposed on the property of the United States, nor shall the lands or other 
property of non-residents be taxed higher than the lands or other property of 
residents." 

§ 1889. — "The legislative assemblies of the several Territories shall not 
grant private charters or especial privileges, but they may, by general incor- 
poration acts, permit persons to associate themselves together" for various 
industrial and benevolent purposes specified. Other restrictions have been 
imposed by subsequent statutes. See especially Acts of 1886, chap. 818, § 5. 



582 THE STATE GOVERNMENTS part ii 

House of Representatives, under a statute, admits a delegate 
from each of them to sit and speak, but of course not to vote, 
because the right of voting in Congress depends on the Federal 
Constitution. The position of a citizen in a Territory is there- 
fore a peculiar one. What may be called his private or passive 
citizenship is complete : he has all the immunities and benefits 
which any other American citizen enjoys. But the public or 
active side is wanting, so far as the National government is 
concerned, although complete for local purposes. 1 He is in the 
position of an Australian subject of the British Crown, who 
has full British citizenship as respects private civil rights, 
and a share in the government of his own colony, but does not 
participate in the government of the British empire at large, 
although personally eligible for any political office in the 
United Kingdom or any other part of the empire. It may 
seem inconsistent with principle that citizens should be taxed 
by a government in whose legislature they are not represented ; 
but the practical objections to giving the full rights of States 
to these comparatively rude communities outweigh any such 
theoretical difficulties. It must moreover be remembered that 
a Territory, which may be called an inchoate or rudimentary 
State, looks forward to become a complete State. When its 
population becomes equal to that of an average congressional 
district, its claim to be admitted as a State is strong, and in 
the absence of specific objections will be granted. Congress, 
however, has absolute discretion in the matter, and often uses 
its discretion under the influence of partisan motives. Nevada 
was admitted to be a State when its population was only 
about 20,000, mainly for the sake of getting its vote for the 
thirteenth Constitutional amendment. It subsequently rose to 
62,266, but has now declined to 45,761. Utah and New Mex- 
ico, the former with 207,905, the latter with 153,593 inhabi- 
tants, at the last census (1890), have been refused admission, 
the population of the latter being largely of Mexican blood, 

1 The Romans drew a somewhat similar distinction hetween the private 
rights of citizenship and the public rights, the latter including the suffrage ami 
eligibility to office, but with them the distinction attached to the person; in 
the United States and the British empire it is an affair of residence, and affects 
the suffrage only, not competence to fill an office. In the British general elec- 
tion of 1892 a distinguished Canadian statesman and a Parsi gentleman from 
Bomhay were elected to the House of Commons. 



chap, xlvii THE TERRITORIES 583 

while the former is deemed, on account of the strength and 
peculiar institutions of the Mormon Church, not fit for that 
emancipation from the tutelage of Congress which its erection 
into a State would confer. 1 When Congress resolves to turn 
a Territory into a State, it either (as happened in the cases of 
Idaho and Wyoming) passes an act accepting and ratifying 
a constitution already made for themselves by the people, and 
forthwith admitting the community as a State, or else passes 
what is called an Enabling Act, under which the inhabitants 
elect a Constitutional Convention, empowered to frame a draft 
con stitutioi>-^- When this constitution has been submitted to 
and accepted by the voters of the Territory, the act of Congress 
takes effect: the Territory is transformed into a State, and 
proceeds to send its senators and representatives to Congress 
in the usual way. The enabling act may prescribe conditions 
to be fulfilled by the State constitution, but has not usually 
attempted to narrow the right which the citizens of the newly- 
formed State will enjoy of subsequently modifying that instru- 
ment in any way not inconsistent with the provisions of the 
Federal Constitution. However, in the case of the Dakotas, 
Montana, Washington, Idaho, and Wyoming, the enabling act 
required the conventions to make " by ordinance irrevocable 
without the consent of the United States and the people of the 
said States " certain provisions, including one for perfect relig- 
ious toleration and another for the maintenance of public 
schools free from sectarian control. This the six States have 
done accordingly. But whether this requirement of the con- 
sent of Congress would be held binding if the people of the 
State should hereafter repeal the ordinance, quaere. 

The arrangements above described seem to work well. Self- 
government is practically enjoyed by the Territories, despite 
the supreme authority of Congress, just as it is enjoyed by 
Canada and the Australasian colonies of Great Britain despite 
the legal right of the British Parliament to legislate for every 
part of the Queen's dominions. The want of a voice in Con- 
gress and in presidential elections, and the fact that the gov- 
ernor is set over them by an external power, are not felt to be 

1 However, the House of Representatives passed in 1892 a bill for the admis- 
sion of New Mexico as well as of Arizona ; and it seems probable that both 
Territories may shortly receive Statehood. 



584 THE STATE GOVERNMENTS part ii 

practical grievances, partly of course because these young com- 
munities are too small and too much absorbed in the work of 
developing their natural resources to be keenly interested in 
national politics. Their local political life much resembles 
that of the newer Western States. Both Democrats and 
Eepublicans have their regular party organizations, but the 
business of a Territorial legislature gives little opportunity for 
any real political controversies, though abundant opportunities 
for local jobbing. 

Before we pass away from the Territories, it may be proper 
to say a few words regarding the character and probable 
future as well of those which lately passed into States as of 
the four which remain, and out of which several new States 
will ultimately be created. 

The largest, the most populous, and in every way the most 
advanced was Dakota (now the two States of North Dakota 
and South Dakota) which lies west of Minnesota, and south 
of the Canadian province of Manitoba. Its area is 147,700 
square miles, greater than that of Prussia, and much greater 
than that of the United Kingdom (120,500 square miles). Its 
eastern and southern parts are becoming filled, though less 
rapidly now than was the case some years back, by an intelli- 
gent farming population, largely Scandinavian in blood. Pos- 
sessing a vast area of undulating prairie land, well fitted for 
wheat crops, and at least the eastern part of which receives 
enough rain to make tillage easy without irrigation, the two 
Dakotas are evidently destined to be among the wealthiest 
and most powerful commonwealths in the Union. 

Montana has an enormous area (145,310 square miles), but 
much of it consists of bare mountains or thin and scarcely 
profitable forest. There are, however, so many rich valleys 
and such an abundance of ranching land, not to speak of the 
valuable mines, that the still scanty population will soon be 
large in some districts. In others, however, it must long 
remain so sparse that the policy of admitting this vast region, 
in its present condition, to the full rights of a State may seem 
open to question. 

Washington, situated on the shores of the Pacific between 
Oregon and British Columbia, had a stronger claim than 
Montana, and is fully fit for the rank of a self-governing 



chap, xlvii THE TERRITORIES 585 

State. That part of it which lies west of the Cascade Kange 
has a moist and equable climate, resembling the climate of 
western England, though somewhat less variable. Many of 
the familiar genera and even species of British plants reappear 
on its hillsides. The forests are by far the finest which the 
United States possess, and will, though they are being sadly 
squandered, remain a source of wealth for a century or more 
to come. I have travelled through many miles of woodland 
where nearly every tree was over 250 feet high. The eastern 
half of the State, lying on the inland side of the mountains, is 
very much drier, and with greater extremes of heat and cold ; 
but it is in parts extremely fertile. Washington, which had 
in 1870 a population of only 23,955 had, in 1890, 349,390 in- 
habitants. 

The States of Wyoming and Idaho, which lie to the S. and 
S. W. of Montana and are traversed by a number of lofty ranges 
belonging to the Eocky Mountain system, have comparatively 
little agricultural land, and even their pastoral tracts suffer 
from the extreme dryness of the climate. There are, however, 
rich mineral deposits, especially in Idaho ; there are in some 
places extensive forests, though of trees inferior in size to 
those of the Pacific coast. The population of these States will 
therefore continue to increase rapidly, especially when the 
fertile lands of Dakota have been filled up. 1 But that popula- 
tion is likely to remain for some time to come much less 
dense, and less stable in its character, than the Dakotan. It 
may therefore be doubted whether their admission, which was 
mainly due to party political motives, was a prudent act. 

The region which now constitutes the Territory of Utah 
was, before the arrival of the Mormons in 1848, a desert, and 
indeed an arid desert, whose lower grounds were covered with 
that growth of alkaline plants which the Americans call sage- 
brush. 2 The patient labour of the Saints, directed, at least 
during the pontificate of Brigham Young, by an able and 
vigilant autocracy, has transformed many of the tracts lying 
along the banks of streams into fertile grain, vegetable, and 

1 In 1890 Idaho had 84,229 inhabitants ; Wyoming, 60,589. 

2 The so-called sage-brush plants are not species of what in England is called 
sage (Salvia) but mostly belong to the order Compositae, which is unusually 
strong in America. Something like a third of the total phaenogamous genera 
of the United States have been estimated to belong to it. 



586 THE STATE GOVERNMENTS part ii 

fruit farms. The water which descends from the mountains 
is turned over the level ground; the alkaline substances are 
soon washed out of the soil, and nothing more than irrigation 
is needed to produce excellent crops. After this process had 
advanced some way the discovery of rich silver mines drew in 
a swarm of Gentile colonists, and the non-Mormon population 
of some districts is now considerable. As Utah had in 1890, 
207,000 inhabitants, it would long ago have been admitted as 
a State but for the desire of Congress to retain complete 
legislative control, and thereby to stamp out polygamy. This 
object seems at last likely to be attained, as at the latest Terri- 
torial election the Gentiles proved to be in a majority; and 
although much of the Territory is likely to remain barren and 
uninhabited, enough is fit for tillage and for dairy-farming to 
give it a prospect of supporting a large settled population. 

Oklahoma (Ind. "beautiful lands") is the name of a new 
Territory which a statute of 1890 created out of the central 
and almost unoccupied parts of the Indian Territory, lying 
west of Arkansas and south of Kansas. Its area is compara- 
tively small (39,030 square miles) and part of this is claimed 
by Texas ; while part still belongs to the Indian nations. It 
is a rolling prairie country, the eastern part of it fit for agri- 
culture without irrigation, and producing cotton and tobacco as 
well as wheat and maize. The soil, though sandy in parts, is 
generally fertile. Coal exists, and probably zinc, and lead also. 
The population, which in 1890, soon after the region was 
opened, was 61,834, and is now (August 1892) estimated by the 
Territorial Secretary at about 100,000, consists of recent immi- 
grants, the northern countries having been occupied by men 
from Kansas, the southern by Texans, both of whom flooded it 
in a sudden wave, seeking to seize the land when it was first 
thrown open to settlement. In 1891 and 1892, there is said to 
have been a considerable influx of negroes, apparently with 
the idea of establishing an influence strong enough to enable 
them to hold their own against the whites better than they 
have been able to do in the Southern States. There are now 
between fifteen and twenty thousand persons of colour, and 
ten thousand Indians, nearly all settled as landholding citizens. 

New Mexico, with an area larger than the United Kingdom 
(population in 1890, 153,000), is still largely peopled by Indo- 



chap, xlvii THE TERRITORIES 587 

Spanish Mexicans/ who speak Spanish, and are obviously ill 
fitted for the self-government which organization as a State 
implies. Water is too scarce and the soil too hilly to make 
agriculture generally available. The same remark applies to 
Arizona (population, 59,000), the sides of whose splendid 
mountain groups are barren, and most of whose plains support 
only a scanty vegetation. Both Territories are rich in min- 
erals, but a mining population is not only apt to be disorderly, 
but is fluctuating, moving from camp to camp as richer deposits 
are discovered or old veins worked out. It seems doubtful, 
therefore, whether either of these mining and ranching Terri- 
tories is likely to be formed into a State at any presently 
assignable date. The time must come when the increase of 
population in the region immediately to the east of the Eocky 
Mountains will turn a fuller stream of immigration into these 
less promising regions, and bring under irrigation culture large 
tracts which are now not worth working. No one can yet say 
when that time will arrive. Till it arrives it will be for the 
benefit of these Territories themselves that they should remain 
content with that limited and qualified form of self-govern- 
ment which they now enjoy, and under which they can practi- 
cally legislate for their own peculiar conditions with sufficient 
freedom. 

Europeans may, however, ask why the theory of American 
democracy, which deems all citizens entitled to a voice in the 
National government, should not at least so far prevail as to 
give the inhabitants of the Territories the right of suffrage in 
congressional and presidential elections. "Does not," he may 
say, "the fact that each sends a delegate, though a voteless 
delegate, to the House of Eepresentatives and two delegates 
to the National Nominating Conventions (to be hereafter 
described) imply that the unenfranchised position of the resi- 
dents in a Territory is felt to be indefensible in theory ? " 

This is true. If it were possible under the Federal Consti- 
tution to admit Territorial residents to active Federal citizen- 
ship — that is to say, to Federal suffrage — admitted they 
would be. But the Union is a union of States. It knows no 

1 There are also 28,799 Indians, some of them settled and comparatively 
civilized. Of these, 8,278 inhabit the so-called " pueblos," so interesting to the 
ethnologist. 



588 THE STATE GOVERNMENTS part ii 

representatives in Congress, no electors for the Presidency, 
except those chosen in States by State voters. The only means 
of granting Federal suffrage to citizens in a Territory would be 
to turn the Territory into a State. This would confer a power 
of self-government, guaranteed by the Federal Constitution, 
for which the Territory might be still unfit. But it would do 
still more. It would entitle this possibly small and rude com- 
munity to send two senators to the Federal Senate who would 
there have as much weight as the two senators from New York 
with its six millions of people. This is a result from which 
Congress may fairly recoil. And a practical illustration of the 
evils to be feared has been afforded by the case of Nevada, a 
State whose inhabitants number only about 40,000, and which 
is really a group of mining camps, most of them already aban- 
doned. Its population is obviously unworthy of the privilege 
of sending two men to the Senate, and has in fact allowed 
itself to sink, for political purposes, into a sort of rotten 
borough which can be controlled or purchased by the leaders 
of a Silver Ring. It would evidently have been better to allow 
Nevada to remain in the condition of a Territory till a large, 
settled and orderly community had occupied her surface, which 
is at present a parched and dismal desert, where the streams 
that descend from the eastern slope of the Sierra Nevada soon 
lose themselves in lakes or marshes. On a review of the whole 
matter it may safely be said that the" American scheme of 
Territorial government, though it suffers from the occasional 
incompetence of the Governor, and is scarcely consistent with 
democratic theory, has in practice worked well, and gives little 
ground for discontent even to the inhabitants of the Terri- 
tories themselves. 



CHAPTER XLVIII 

LOCAL GOVERNMENT 

This is the place for an account of local government in the 
United States, because it is a matter regulated not by Federal 
law but by the several States and Territories, each of which 
establishes such local authorities, rural and urban, as the 
people of the State or Territory desire, and invests them with 
the requisite powers. But this very fact indicates the im- 
mensity of the subject. Each State has its own system of 
local areas and authorities, created and worked under its own 
laws ; and though these systems agree in many points, they 
differ in so many others, that a whole volume would be needed 
to give even a summary view of their peculiarities. All I can 
here attempt is to distinguish the leading types of local gov- 
ernment to be found in the United States, to describe the 
prominent features of each type, and to explain the influence 
which the large scope and popular character of local adminis- 
tration exercise upon the general life and well-being of the 
American people. 

Three types of rural local government are discernible in 
America. The first is characterized by its unit, the Town or 
Township, and exists in the six New England States. The 
second is characterized by a much larger unit, the county, and 
prevails in the southern States. The third combines some 
features of the first with some of the second, and may be 
called the mixed system. It is found, under a considerable 
variety of forms, in the middle and north-western States. 
The differences of these three types are interesting, not only 
because of the practical instruction they afford, but also be- 
cause they spring from original differences in the character of 
the colonists who settled along the American coast, and in the 
conditions under which the communities there founded were 
developed. 



590 THE STATE GOVERNMENTS part ii 

The first New England settlers were Puritans in religion, 
and sometimes inclined to republicanism in politics. They 
were largely townsfolk, accustomed to municipal life and to 
vestry meetings. They planted their tiny communities along 
the sea-shore and the banks of rivers, enclosing them with 
stockades for protection against the warlike Indians. Each 
was obliged to be self-sufficing, because divided by rocks and 
woods from the others. Each had its common pasture on 
which the inhabitants turned out their cattle, and which offi- 
cers were elected to manage. Each was a religious as well as 
a civil body politic, gathered round the church as its centre ; 
and the equality which prevailed in the congregation pre- 
vailed also in civil affairs, the whole community meeting 
under a president or moderator to discuss affairs of common 
interest. Each such settlement was called a Town, or Town- 
ship, and was in fact a miniature commonwealth, exercising a 
practical sovereignty over the property and persons of its 
members — for there was as yet no State, and the distant home 
government scarcely cared to interfere — but exercising it on 
thoroughly democratic principles. Its centre was a group of 
dwellings, often surrounded by a fence or wall, but it included 
a rural area of several square miles, over which farmhouses 
and clusters of houses began to spring up when the Indians 
retired. The name "town" covered the whole of this area, 
which was never too large for all the inhabitants to come to- 
gether to a central place of meeting. This town organization 
remained strong and close, the colonists being men of narrow 
means, and held together in each settlement by the needs of 
defence. And though presently the towns became aggregated 
into counties, and the legislature and governor, first of the 
whole colony, and, after 1776, of the State, began to exert 
their superior authority, the towns (which, be it remembered, 
remained rural communities, making up the whole area of the 
State) held their ground, and are to this day the true units of 
political life in New England, the solid foundation of that 
well-compacted structure of self-government which European 
philosophers have admired and the new States of the West 
have sought to reproduce. Till 1821 * the towns were the only 

1 Boston continued to be a town governed by a primary assembly of all 
citizens till 1822; and even then the town-meeting was not quite abolished, 



chap, xlviii LOCAL GOVERNMENT 591 

political corporate bodies in Massachusetts, and till 1857 they 
formed, as they still form in Connecticut, the basis of repre- 
sentation in her Assembly, each town, however small, return- 
ing at least one member. Not a little of that robust, if 
somewhat narrow, localism which characterizes the represen- 
tative system of America is due to this originally distinct and 
self-sufficing corporate life of the seventeenth century towns. 
f Nor is it without interest to observe that although they owed 
much to the conditions which surrounded the early colonists, 
forcing them to develop a civic patriotism resembling that of 
the republics of ancient Greece and Italy, they owed some- 
thing also to those Teutonic traditions of semi-independent 
local communities, owning common property, and governing 
themselves by a primary assembly of all free inhabitants, 
which the English had brought with them from the Elbe and 
the Weser, and which had been perpetuated in the practice 
of many parts of England down till the days of the Stuart 
kings. 1 1 

Very different were the circumstances of the Southern 
colonies. The men who went to Virginia and the Carolinas 
were not Puritans, nor did they mostly go in families and 
groups of families from the same neighbourhood. Many were 
casual adventurers, often belonging to the upper class, Episco- 
palians in religion, and with no such experience of, or attach- 
ment to, local self-government as the men of Massachusetts or 
Connecticut. They settled in a region where the Indian tribes 
were comparatively peaceable, and where therefore there was 
little need of concentration for the purposes of defence. The 
climate along the coast was somewhat too hot for European 
labour, so slaves were imported to cultivate the land. Popu- 
lation was thinly scattered ; estates were large ; the soil was 
fertile and soon enriched its owners. Thus a semi-feudal 
society grew up, in which authority naturally fell to the land- 
owners, each of whom was the centre of a group of free de- 

for a provision was introduced, intended to satisfy conservative democratic 
feeling, into the city charter granted by statute in that year, empowering the 
mayor and aldermen to call general meetings of the citizens qualified to vote 
in city affairs "to consult upon the common good, to give instructions to 
their representatives, and to take all lawful means to obtain a redress of 
any grievances." Such primary assemblies are, however, never now con- 
voked. 



592 THE STATE GOVERNMENTS part ii 

pendants as well as the master of an increasing crowd of slaves. 
There were therefore comparatively few urban communities, 
and the life of the colony took a rural type. The houses of 
the planters lay miles apart from one another ; and when local 
divisions had to be created, these were made large enough to 
include a considerable area of territory and number of land- 
owning gentlemen. They were therefore rural divisions, 
counties framed on the model of English counties. Smaller 
circumscriptions there were, such as hundreds and parishes, 
but the hundred died out, 1 the parish ultimately became a 
purely ecclesiastical division, and the parish vestry was re- 
stricted to ecclesiastical functions, while the county remained 
the practically important unit of local administration, the unit 
to which the various functions of government were aggregated, 
and which, itself controlling minor authorities, was controlled 
^by the State government alone. The affairs of the county 
were usually managed by a board of elective commissioners, 
and not, like those of the New England towns, by a primary 
assembly ; and in an aristocratic society the leading planters 
had of course a predominating influence. Hence this form of 
local government was not only less democratic, but less stimu- 
lating and educative than that which prevailed in the New 
England States. Nor was the Virginian county, though so 
much larger than the New England town, ever as important 
an organism over against the State. It may almost be said, 
that while a New England State is a combination of towns, a 
Southern State is from the first an administrative as well as 
political whole, whose subdivisions, the counties, had never 
any truly independent life, but were and are mere subdivisions 
for the convenient dispatch of judicial and financial business. 
* In the middle States of the Union, Pennsylvania, New Jer- 
sey, and New York, settled or conquered by Englishmen some 
time later than New England, the town and town meeting did 

1 In Maryland hundreds, which still exist in Delaware, were for a long time 
the chief administrative divisions. We hear there also of " haronies " and 
" townlands," as in Ireland; and Maryland is usually called a "province," 
while the other settlements are colonies. Among its judicial establishments 
there were courts of pypowdry {pie pouilre) and " hustings." 

The hundred is a division of small consequence in southern England, hut in 
Lancashire it has some important duties. It repairs the bridges; it is liable 
for damage done in a riot ; and it had its high constable. 



chap, xlviii LOCAL GOVERNMENT 593 

not as a rule exist, and the county was the original basis of 
organization. But as there grew up no planting aristocracy 
like that of Virginia or the Carolinas, the course of events 
took in the middle States a different direction. As trade and 
manufactures grew, population became denser than in the 
South. New England influenced them, and influenced still 
more the newer commonwealths which arose in the North-west, 
such as Ohio and Michigan, into which the surplus population 
of the East poured. And the result of this influence is seen 
in the growth through the middle and western States of a 
mixed system, which presents a -sort of compromise between 
the County system of the South and the Town system of the 
North-east. There are great differences between the arrange- 
ments in one or other of these middle and western States. 
But it may be said, speaking generally, that in them the 
county is relatively less important than in the southern States, 
the township less important than in New England. The 
county is perhaps to be regarded, at least in New York, Penn- 
sylvania, and Ohio, as the true unit, and the townships (for 
so they are usually called) as its subdivisions. But the town- 
ships are vigorous organisms, which largely restrict the func- 
tions of the county authority, and give to local government, 
especially in the North-west, a character generally similar to 
that which it wears in New England. 

So much for the history of the subject; a history far more 
interesting in its details than will be supposed from the rough 
sketch to which limits of space restrict me. Let us now look 
at the actual constitution and working of the organs of local 
government in the three several regions mentioned, beginning 
with New England and the town system. 1 I will first set forth 
the dry but necessary outline, reserving comments for the fol- 
lowing chapter. 

1 The word Town, which I write with a capital when using it in the Ameri- 
can sense, is the Icelandic tun, Anglo-Saxon tun, German zaun, and seems 
originally to have meant a hedge, then a hedged or fenced plot or enclosure. 
In Scotland (where it is pronounced "toon") it still denotes the farmhouse 
and buildings ; in Iceland the manured grass plot, enclosed within a low green 
bank or raised dyke, which surrounds the baer or farmhouse. In parts of 
eastern England the chief cluster of houses in a parish is still often called " the 
town." In the North of England, where the parishes are more frequently 
large than they are in the South, the civil divisions of a parish are called 
townships. 

VOL. I 2 Q 



594 THE STATE GOVERNMENTS part ii 

The Town is in rural districts the smallest local circumscrip- 
tion. English readers must be reminded that it is a rural, not 
an urban community, and that the largest group of houses it 
contains may be only what would be called in England a ham- 
let or small village. Its area seldom exceeds five square 
miles ; its population is usually small, averaging less than 
3000, but occasionally ranges up to 13,000, and sometimes falls 
below 200. 1 It is governed by an assembly of all qualified 
voters resident within its limits, which meets at least once a 
year, in the spring (a reminiscence of the Easter vestry of 
England), and from, time to time as summoned. There are 
usually three or four meetings each year. Notice is required 
to be given at least ten days previously, not only of the hour 
and place of meeting, but of the business to be brought for- 
ward. This assembly has, like the Eoman Comitia and the 
Landesgemeinde in four of the older Swiss Cantons, the power 
both of electing officials and of legislating. It chooses the 
selectmen, school committee, and executive officers for the 
coming year ; it enacts bye-laws and ordinances for the regula- 
tion of all local affairs; it receives the reports of the select- 
men and the several committees, passes their accounts, hears 
what sums they propose to raise for the expenses of next year, 
and votes the necessary taxation accordingly, appropriating to 
the various local purposes — schools, aid to the poor, the 
repair of highways, and so forth — the sums directed to be 
levied. Its powers cover the management of the town lands 
and other property, and all local matters whatsoever, including 
police and sanitation. Every resident has the right to make, 
and to support by speech, any proposal. The meeting which 
is presided over by a chairman called the Moderator — a name 
recalling the ecclesiastical assemblies of the English Common- 
wealth 2 — is held in the town hall, if the Town possesses one, 
or in the principal church or schoolhouse, but sometimes in the 
open air. The attendance is usually good ; the debates sensible 

1 1 find in Massachusetts one town (New Ashford) with only 125 inhabitants, 
and one (Pittsfield) with 17,281. But both in this and other New England 
States most towns have a population of from 1200 to 2500. 

2 The presiding officer in the synods and assemblies of the Scottish Presby- 
terian Churches is still called the Moderator. This is also the president's title 
in the synods of the American Presbyterian churches, and in the councils of 
the Congregationalist and associations of the Baptist churches. 



chap, xlviii LOCAL GOVERNMENT 595 

and practical. Much, of course depends on the character and 
size of the population. Where it is of native American stock, 
and the number of voting citizens is not too great for thorough 
and calm discussion, no better school of politics can be imag- 
ined, nor any method of managing local affairs more certain to 
prevent jobbery and waste, to stimulate vigilance and breed 
contentment. 1 When, however, the town meeting has grown 
to exceed seven or eight hundred persons, where the element 
of farmers has been replaced by that of factory operatives, and 
still more when any considerable section are strangers, such as 
the Irish or French Canadians who have latterly poured into 
New England, the institution works less perfectly, because the 
multitude is too large for debate, factions are likely to spring 
up, and the new immigrants, untrained in self-government, 
become the prey of wirepullers or petty demagogues. The 
social conditions of to-day in New England are less favourable 
than those which gave birth to it ; and there are now in the 
populous manufacturing States of Massachusetts, Khode 
Island, and Connecticut comparatively few purely rural towns, 
such as those which suggested the famous eulogium of Jeffer- 
son, who eighty years ago desired to see the system trans- 
planted to his own Virginia : 

" Those wards called townships in New England are the vital 
principle of their governments, and have proved themselves 
the wisest invention ever devised by the wit of man for the 
perfect exercise of self-government, and for its preservation. 
... As Cato then concluded every speech with the words 
' Carthago delenda est,' so do I every opinion with the injunc- 
tion ' Divide the counties into wards.' " 

The executive of a Town consists of the selectmen, from 
three to nine in number, usually either three, five, or seven. 
They are elected annually, and manage all the ordinary busi- 
ness, of course under the directions given them by the last pre- 
ceding meeting. There is also a Town-clerk, who keeps the 
records, and minutes the proceedings of the meeting, and is 
generally also registrar of births and deaths ; a treasurer ; as- 

1 See an interesting account of the town meeting thirty years ago in Mr. 
J. K. Hosmer's Life of Samuel Adams, chap, xxiii. An instructive descrip- 
tion of a typical New England Town may be found in a pamphlet entitled 
The Town of Groton, by Dr. S. Green, late Mayor of Boston. 



596 THE STATE GOVERNMENTS part ii 

sessors, who make a valuation of property within the Town 
for the purposes of taxation; the collector, who gathers the 
taxes, and divers minor officers, such as hog-reeves 1 (now 
usually called field drivers), cemetery trustees, library trustees, 
and so forth, according to local needs. There is always a school 
committee, with sometimes sub-committees for minor school 
districts if the Town be a large one. Some of these officers 
and committees are paid (the selectmen usually), some unpaid, 
though allowed to charge their expenses actually incurred in 
Town work; and there has generally been no difficulty in get- 
ting respectable and competent men to undertake the duties. 
Town elections are not professedly political, i.e. they are not 
usually fought on party lines, though occasionally party spirit 
affects them, and a man prominent in his party is more likely 
to obtain support. 2 

1 Mr. R. W. Emerson served in this capacity in his Town, fulfilling the duty- 
understood to devolve on every citizen of accepting an office to which the Town 
appoints him. 

2 When a Town reaches a certain population it is usually transformed by 
law into a City; but occasionally, while the City is created as a municipal cor- 
poration within the limits of a Town, the Town continues to exist as a distinct 
organization. A remarkable instance is furnished by the Town and City of 
New Haven, in Connecticut. New Haven was incorporated as a city in 1784. But 
it continued to be and is still a town also. Three-fourths of the area of the town 
and seventeen-eighteenths of its population are within the limits of the city. 
But the two governments remain completely distinct. The city has its mayor, 
aldermen, and common council, and its large executive staff. The town meet- 
ing elects its selectmen and other officers, 152 in all, receives their reports, 
orders aud appropriates taxes, and so forth. Practically, however, it is so much 
dwarfed by the city as to attract little attention. Says Mr. Levermore : 
"This most venerable institution appears to-day in the guise of a gathering of 
a few citizens, who do the work of as many thousands. The few individuals 
who are or have been officially interested in the government of the town, meet 
together, talk over matters in a friendly way, decide what the rate of taxation 
for the coming year shall be, and adjourn. Not one-seventieth part of the citi- 
zens of the town has attended an annual town meeting; they hardly know when 
it is held. The newspapers give its transactions a scant notice, which some of 
their subscribers probably read. The actual governing force of the town is there- 
fore an oligarchy in the bosom of a slumbering democracy. But the town is well 
governed. Its government carries too little spoil to attract those unreliable 
politicians who infest the city council. If the ruling junto should venture on 
too lavish a use of the town's money, an irresistible check would appear at 
once. Any twenty citizens could force the selectmen to summon the town to- 
gether, and the apparent oligarchy would doubtless go down before the 
awakened people." — " The Town and City Government of New Haveu," in 
J. H. U. Studies, Fourth Series. 

The Student of Roman history will rind in this quaint survival of an ancient 
assembly some resemblance to the comitia curiata of Rome under the later 
Republic. But the American survival is the more vigorous of the two. 



chap, xlviii LOCAL GOVERNMENT 597 

Next above the Town stands the comity. Its area and popu- 
lation vary a good deal. Massachusetts with an area of 8040 
square miles has fourteen counties ; Rhode Island with 1085 
square miles has five; the more thinly peopled Maine, with 
29,985 square miles, has sixteen, giving an average of about 
1100 square miles to each county on these three States, though 
in Rhode Island the average is only 217 square miles. Simi- 
larly the populations of the counties vary from 4000 to 30,000 ; 
the average population being, where there are no large cities, 
from 20,000 to 40,000. 1 The county was originally an aggrega- 
tion of Towns for judicial purposes, and is still in the main a 
judicial district in and for which civil and criminal courts are 
held, some by county judges, some by State judges, and in and 
for which certain judicial officers are elected by the people at 
the polls, who also choose a sheriff and a clerk. Police belongs 
to the Towns and cities, not to the county within which they 
lie. The chief administrative officers are the county commis- 
sioners, of whom there are three in Massachusetts (elected for 
three years, one in each year), and county treasurer. 2 They 
are salaried officers, and have the management of county build- 
ings, such as court-houses and prisons, with power to lay out 
new highways from town to town, to grant licences, estimate 
the amount of taxation needed to defray county charges, 3 and 
apportion the county tax among the towns and cities by whom 
it is to be levied. But except in this last-mentioned respect 
the county authority has no power over the Towns, and it will 
be perceived that while the county commissioners are con- 
trolled by the legislature, being limited by statute to certain 
well-defined administrative functions, there exists nothing in 
the nature of a county council or other assembly with legis- 
lative functions. The functions of the county are in fact of 
small consequence : it is a judicial district and a highway dis- 
trict and little more. 

This New England system resembles that of Old England 

1 The average population of a Massachusetts county is 160,000, the two 
smallest counties having only 4369 and 3268 respectively, the largest 484,780. 

2 In Rhode Island there are none but judicial officers for the counties. In 
Vermont I find besides judges, a state attorney, high bailiff, and county 
clerk. In Massachusetts all judges are appointed by the governor. 

3 The chief items of county expenditure are those for judicial purposes, in- 
cluding the maintenance of buildings, and for roads and bridges. 



598 THE STATE GOVERNMENTS part ii 

as the latter stood during the centuries that elapsed between 
the practical disappearance of the old County Court or Shire 
Moot and the creation by comparatively recent statutes of such 
intermediate bodies and authorities as poor-law unions, high- 
way districts and boards, local sanitary authorities. If we 
compare the New England scheme with that of the England 
of to-day, we are struck not only by the greater simplicity of 
the former, but also by the fact that it is the smaller organisms, 
the Towns, that are most powerful and most highly vitalized. 
Nearly everything belongs to them, only those duties devolv- 
ing on the counties which a small organism obviously cannot 
undertake. The system of self-governing Towns no doubt 
works under the supervision of a body, the State legislature, 
which can give far closer attention to local affairs than the 
English parliament can give to English local business. But 
in point of fact the State legislature interferes but little (less, 
I think, than the Local Government Board interferes in Eng- 
land) with the conduct of rural local business, though often 
required to deal with the applications which Towns make to 
be divided or have their boundaries altered, and which are fre- 
quently resisted by a part of the inhabitants. 

The system which prevails in the Southern States need not 
long detain us, for it is less instructive and has proved less 
successful. Here the unit is the county, except in Louisiana, 
where the equivalent division is called a parish. The county 
was originally a judicial division, established for the purposes 
of local courts, and a financial one, for the collection of State 
taxes. It has now, however, generally received some other 
functions, such as the superintendence of public schools, the 
care of the poor, and the management of roads. In the South 
counties are larger than in New England, but not more popu- 
lous, for the country is thinly peopled. 1 The county officers, 
whose titles and powers vary somewhat in different States, 
are usually the Board or Court of county commissioners, an 
assessor (who prepares the valuation), a collector (who gathers 

1 Georgia, with 59,475 square miles, has 137 counties : Alabama, with 52,250 
square miles, has 66. Speaking generally, the newer States have the larger 
counties, just as in England the smallest parishes are in the tirst settled parts 
of England, or rather in those parts where population was comparatively dense 
at the time when parishes sprang up. 



chap, xlviii LOCAL GOVERNMENT 599 

the taxes 1 ), a treasurer, a superintendent of education, an 
overseer of roads — all of course salaried, and now, as a rule, 
elected by the people, mostly for one or two years. 2 These 
county officers have, besides the functions indicated by their 
names, the charge of the police and the poor of the county, 
and of the construction of public works, such as bridges and 
prisons. The county judges and the sheriff, and frequently the 
coroner, are also chosen by the people. The sheriff is every- 
where in America neither an ornamental person, as he has 
become in England, nor a judge, with certain executive func- 
tions, as in Scotland, but the chief executive officer attached 
to the judicial machinery of the county. 

In these southern States there exist various local divisions 
smaller than the counties. 3 Their names and their attributions 
vary from State to State, but they have no legislative author- 
ity like that of the Town meeting of New England, and their 
officers have very limited powers, being for most purposes 
controlled by the county authorities. The most important 
local body is the school committee for each school district. 
In several States, such as Virginia and North Carolina, we now 
find townships, and the present tendency seems in these 
States to be towards the development of something resembling 
the New England Town. It is a tendency which grows with 
the growth of population, with the progress of manufactures 
and of the middle and industrious working class occupied 
therein, and especially with the increased desire for education. 
The school, some one truly says, is becoming the nucleus of 
local self-government in the South now, as the church was in 
New England two centuries ago. 4 Nowhere, however, has 

1 Sometimes, as in Louisiana, the sheriff is also tax collector. 

2 In some States some of these officials are nominated by the governor. In 
Florida the governor appoints even the board of five county commissioners. 
Constit. of 1886, Art. viii. § 5. The other county officers, viz. clerk of circuit 
court, sheriff, constables, assessor of taxes, tax-collector, treasurer, superin- 
tendent of public instruction, and surveyor, are elected by the people for two 
or four years (§ 6) . 

3 In South Carolina the parish was originally a pretty strong local unit, but 
it withered away as the county grew under the influence of the plantation 
system. The word "parish" is in America now practically equivalent to 
" congregation," and does not denote a local area. 

4 Virginia has moved in this direction. See the interesting Treatise (pub- 
lished since the first edition of this book) of Mr. George E. Howard, on the 
Local Constitutional History of the United States. 



600 THE STATE GOVERNMENTS part ii 

there appeared a primary assembly ; while the representative 
local assembly is still in its infancy. Local authorities in the 
South, and in the States which, like Nevada and Oregon, may 
be said to have adopted the county system, are generally 
executive officers and nothing more. 

The third type is less easy to characterize than either of the 
two preceding, and the forms under which it appears in the 
middle and north-western States are even more various than 
those referable to the second type. Two features mark it. 
One is the importance and power of the county, which in the 
history of most of these States appears before any smaller 
division ; the other is the activity of the township, 1 which has 
more independence and a larger range of competence than 
under the system of the South. Now of these two features 
the former is the more conspicuous in one group of States — 
Pennsylvania, New Jersey, New York, Ohio, Indiana, Iowa; 
the latter in another group — Michigan, Illinois, Wisconsin, 
Minnesota, the two Dakotas, the reason being that the New 
Englanders, who were often the largest and always the most 
intelligent and energetic element among the settlers in the more 
northern of these two State groups, carried with them their 
attachment to the Town system and their sense of its value, and 
succeeded, though sometimes not without a struggle, in estab- 
lishing it in the six great and prosperous commonwealths which 
form that group. On the other hand, while Pennsylvania, 
New Jersey, and New York had not (from the causes already 
stated) started with the Town system, they never adopted it 
completely; while in Ohio and Indiana the influx of settlers 
from the Slave States, as well as from New York and Penn- 
sylvania, gave to the county an early preponderance, which it 
has since retained. The conflict of the New England element 
with the Southern element is best seen in Illinois, the northern 
half of which State was settled by men of New England blood, 
the southern half by pioneers from Kentucky and Tennessee. 
The latter, coming first, established the county system, but the 
New Englanders fought against it, and in the constitutional 
convention of 1848 carried a provision, embodied in the consti- 
tution of that year, and repeated in the present constitution of 

1 Township is the term most frequently used outside New England : Town 
in Now England. 



chap, xlviii LOCAL GOVERNMENT 601 

1870, whereby any county may adopt a system of township 
organization "whenever the majority of the legal voters of the 
county voting at any general election shall so determine." 1 
Under this power four-fifths of the 102 counties have now 
adopted the township system. 2 

Illinois furnishes so good a sample of that system in its 
newer form that I cannot do better than extract from a clear 
and trustworthy writer, the following account of the whole 
scheme of local self-government in that State, which is fairly 
typical of the North-west : — 

"When the people of a county have voted to adopt the township 
system, the commissioners proceed to divide the county into towns, mak- 
ing them conform with the congressional or school townships, except in 
special cases. Every town is invested with corporate capacity to be a 
party in legal suits, to own and control property, and to make con- 
tracts. The annual town meeting of the whole voting population, held 
on the first Tuesday in April, for the election of town officers and the 
transaction of miscellaneous business, is the central fact in the town 
government. The following is a summary of what the people may do in 
town meeting. They may make any orders concerning the acquisition, 
use, or sale of town property ; direct officers in the exercise of their 
duties ; vote taxes for roads and bridges, and for other lawful purposes ; 
vote to institute or defend suits at law ; legislate on the subject of noxious 
weeds, and offer rewards to encourage the extermination of noxious 
plants and vermin ; regulate the running at large of cattle and other 
animals ; establish pounds, and provide for the impounding and sale of 
stray and trespassing animals ; provide public wells and watering-places ; 
enact bye-laws and rules to carry their powers into effect ; impose fines 
and penalties, and apply such fines in any manner conducive to the 
interests of the town. 3 

" The town officers are a supervisor, who is ex officio overseer of the 
poor, a clerk, an assessor, and a collector,, all of whom are chosen an- 
nually ; three commissioners of highways elected for three years, one re- 
tiring every year ; and two justices of the peace and two constables, who 
hold office for four years. 

1 See Constitution of 1870, Art. x. § 5, where a provision is added that any 
county desiring to forsake township organization may do so by a vote of the 
electors in the county, in which case it comes under the county system pre- 
scribed in the following sections of that article. 

2 Illinois has 102 counties, with an average population, in 1890, of 36,000 ; 
Iowa 99 counties, with an average population of 19,000. England (excluding 
Wales) has 40 counties, with an average population, in 1891, of 687,000. 

3 There are English analogies to all these powers, but in England some of 
them are or were exercised in the Manor court and not in the Vestry. 



602 THE STATE GOVERNMENTS part ii 

" On the morning appointed for the town meeting the voters assemble, 
and proceed to choose a moderator, who presides for the day. Balloting 
for town officers at once begins, the supervisor, collector, and assessor 
acting as election judges. Every male citizen of the United States who is 
twenty-one years old, who has resided in the State a year, in the county 
ninety days, and in the township thirty days, is entitled to vote at 
town meeting ; but a year's residence in the town is required for eligibil- 
ity to office. At two o'clock the moderator calls the meeting to order for 
the consideration of business pertaining to those subjects already enum- 
erated. Everything is done by the usual rules and methods of parlia- 
mentary bodies. The clerk of the town is secretary of the meeting, and 
preserves a record of all the proceedings. Special town meetings may be 
held whenever the supervisor, clerk, or justices, or any two of them, to- 
gether with fifteen voters, shall have filed with the clerk a statement that 
a meeting is necessary, for objects which they specify. The clerk then 
gives public notice in a prescribed way. Such special meetings act only 
upon the subjects named in the call. 

" The supervisor is both a town and a county officer. He is general man- 
ager of town business, and is also a member of the county board, which is 
composed of the supervisors of the several towns, and which has general 
control of the county business. As a town officer, he receives and pays 
out all town money, excepting the highway and school funds. His finan- 
cial report is presented by the clerk at town meeting. The latter officer is 
the custodian of the town's records, books, and papers. The highway 
commissioners, in their oversight of roads and bridges, are controlled by 
a large body of statute law, and by the enactments of the town meeting. 
Highways are maintained by taxes levied on real and personal property, 
and by a poll-tax of two dollars, exacted from every able-bodied citizen 
between the ages of twenty-one and fifty. It may be paid in money or 
in labour under the direction of the commissioners. One of the commis- 
sioners is constituted treasurer, and he receives and pays out all road 
moneys. 

" The supervisor acts as overseer of the poor. The law leaves it to be 
determined by the people of a county whether the separate towns or the 
county at large shall assume. the care of paupers. When the town has 
the matter in charge, the overseer generally provides for the indigent by 
a system of out-door relief. If the county supports the poor, the county 
board is authorized to establish a poor-house and farm for the permanent 
care of the destitute, and temporary relief is afforded by the overseers 
in their respective towns, at the county's expense. 

' ' The board of town auditors, composed of the supervisor, the clerk, 
and the justices, examine all accounts of the supervisor, overseer of poor, 
and highway commissioners ; pass upon all claims and charges against 
the town, and audit all bills for compensation presented by town officers. 
The accounts thus audited are kept on file by the clerk for public inspec- 
tion, and are reported at the next town meeting. The supervisor, asses- 
sor, and clerk constitute a Board of Health. The clerk records their 
doings, and reports them at the meetings of the town. 



chap, xlviii LOCAL GOVERNMENT 603 

" No stated salaries are paid to town officers. They are compensated 
according to a schedule of fixed fees for specific services, or else receive 
certain per diem wages for time actually employed in official duties. The 
tax-collector's emolument is a percentage. 

"For school purposes, the township is made a separate and distinct 

corporation, with the legal style, ' Trustees of Schools of Township , 

Range ,' according to the number by which the township is desig- 
nated in the Congressional Survey. The school trustees, three in num- 
ber, are usually elected with the officers of the civil township at town 
meetings, and hold office for three years. They organize by choosing one 
of their number president, and by selecting some fourth person for school 
treasurer, who shall also be, ex officio, their secretary. They have 
authority to divide the township into school districts. It must be remem- 
bered that the township is exactly six miles square. It is the custom to 
divide it into nine districts, two miles square, and to erect a schoolhouse 
near the centre of each. As the county roads are, in most instances, 
constructed on the section lines — and therefore run north and south, east 
and west, at intervals of a mile — the traveller expects to find a school- 
house at every alternate crossing. The people who live in these sub- 
districts elect three school directors, who control the school in their 
neighbourhood. They are obliged to maintain a free school for not less 
than five nor more than nine months in every year, are empowered to 
build and furnish schoolhouses, hire teachers and fix their salaries, and 
determine what studies shall be taught. They may levy taxes on all the 
taxable property in their district, but are forbidden to exceed a rate of 
two per cent for educational or three per cent for building purposes. 
They certify to the township school treasurer the amount they require, 
and it is collected as hereafter described. This last-named officer holds 
all school funds belonging to the township, and pays out on the order of 
the directors of the several districts. 

' ' The township funds for the support of schools arise from three 
sources. (1) The proceeds of the school lands given by the United States 
Government, the interest from which alone may be expended. (2) The 
State annually levies on all property a tax of one-fifth of one per cent, 
which constitutes a State school fund, and is divided among the counties 
in the ratio of their school population, and is further distributed among 
the townships in the same ratio. (3) Any amount needed in addition to 
these sums is raised by taxation in the districts under authority of the 
directors. 

"All persons between the ages of six and twenty -one years are entitled 
to free school privileges. Women are eligible to every school office in the 
State, and are frequently chosen directors. The average Illinois county 
contains sixteen townships. The county government is established at 
some place designated by the voters, and called the ' county seat.' The 
corporate powers of the county are exercised by the county board, which, 
in counties under township organization, is composed of the several town 
supervisors, while in other counties it consists of three commissioners 
elected by the people of the whole county. The board manage all county 



604 THE STATE GOVERNMENTS part ii 

property, funds, and business ; erect a court-house, jail, poorhouse, and 
any necessary buildings ; levy county taxes, audit all accounts and claims 
against the county, and, in counties not under township organization, have 
general oversight of highways and paupers. Even in counties which have 
given the care of highways to the townships, the county board may appro- 
priate funds to aid in constructing the more important roads and expen- 
sive bridges. The treasurer, sheriff, 1 coroner, and surveyor are county 
functionaries. 2 

' ' The county superintendent of schools has oversight of all educational 
matters, advises town trustees and district directors, and collects com- 
plete school statistics, which he reports to the county board, and trans- 
mits to the State superintendent of public instruction. 

"Every county elects a judge, who has full probate jurisdiction, and 
appoints administrators and guardians. He also has jurisdiction in civil 
suits at law, involving not more than $1000, in such minor criminal cases 
as are cognizable by a justice of the peace, and may entertain appeals 
from justices or police courts. The State is divided into thirteen judicial 
districts, in each of which the people elect three judges, who constitute a 
circuit court. The tribunal holds two or more sessions annually in each 
county within the circuit, and is attended at every term by a grand or 
petit jury. It has a general original jurisdiction, and hears appeals from 
the county judge and from justices' courts. 

" To complete the judicial system of the State there are four appellate 
courts and one supreme court of last resort. Taxes whether for State, 
county, or town purposes are computed on the basis of the assessment 
made by the town assessor, and are collected by the town collector. 
The assessor views and values all real estate, and requires from all 
persons a true list of their personal property. The assessor, clerk, and 
supervisor constitute a town equalizing board, to hear complaints and 
to adjust and correct the assessment. 

"The assessors' books from all the towns then go before the county 
board, who make such corrections as cause valuations in one town to 
bear just relation to valuations in the others. The county clerk trans- 
mits an abstract of the corrected assessment to the auditor of the State, 
who places it in the hands of a State board of equalization. 

"This board adjusts valuations between counties. All taxes are esti- 
mated and collected on this finally corrected assessment. The State 
authorities, the county board, the town supervisors, the highway com- 
missioners, the township school trustees, and the proper officers of incor- 
porated cities and villages, all certify to the county clerk a statement of 
the amount they require for their several purposes. The clerk prepares 
a collection-book for each town explaining therein the sum to be raised 
for each purpose. Having collected the total amount the collector dis- 

1 The sheriff is the executive officer of the higher courts, with responsibility 
for the peace of the county. In case of riot lie may call out the county militia. 

2 Ordinary police work, other than judicial, is not a county matter, but left 

to the township with its constables. 



chap, xlviii LOCAL GOVERNMENT 605 

burses to each proper authority its respective quota. In all elections, 
whether for President of the United States, representatives in Congress, 
State officers or county officers, the township constitutes an election 
precinct, and the supervisor, assessor, and collector sit as the election 
judges. 

"The words 'town' and 'township' signify a territorial division of 
the county, incorporated for purposes of local government. There 
remains to be mentioned a very numerous class of municipal corporations 
known in Illinois statutes as ' villages ' and ' cities. ' A minimum popu- 
lation of three hundred, occupying not more than two square miles in 
extent, may by popular vote become incorporated as a 'village,' under 
provisions of the general law. Six village trustees are chosen, and they 
make one of their number president, thereby conferring on him the gen- 
eral duties of a mayor. At their discretion the trustees appoint a clerk, 
a treasurer, a street commissioner, a village constable, and other officers 
as they deem necessary. The people may elect a police magistrate, whose 
jurisdiction is equal to that of a justice of the peace. ' ' x 

A similar picture of the town meeting in Michigan is given 
by another recent authority : — 

"The first Monday in April of each year every citizen of the United 
States twenty-one years of age and upwards who has resided in the State 
six months, and in the township the ten days preceding, has the right of 
attending and participating in the meeting. The supervisor, the chief 
executive officer of the township, presides. He and the justice of the 
peace whose term of office soonest expires, and the township clerk, con- 
stitute the inspectors of election. After the choice of officers for the 
ensuing year the electors proceed from twelve to one, or three, as the 
case may require, to the discussion of town business. Complaint is per- 
haps made that the cattle in a certain part of the township are doing 
damage by running at large, a bye-law is passed forbidding the same 
under penalty not exceeding ten dollars. 

" A bridge may be wanted in another part of the township, but the in- 
habitants of that road district cannot bear the expense ; the town meeting 
votes the necessary amount not exceeding the limits of law, for the 
laws restricting the amount of taxation and indebtedness are very par- 
ticular in their provisions. 

"The electors may regulate the keeping and sale of gunpowder, the 
licensing of dogs and the maintenance of hospitals, and may order the 
vaccination of all inhabitants. The voters in town meeting are also to 
decide how much of the one-mil tax on every dollar of the valuation shall 
be applied to the purchase of books for the township library, the residue 
going to schools. 

"The annual reports of the various township officers charged with the 

1 " Local Government in Illinois," by Albert Shaw, LL.D., in J. H. U. Stud- 
ies, Baltimore, 1883. 



606 THE STATE GOVERNMENTS tart ii 

disbursement of public moneys are also submitted at this time. In short, 
whatever is local in character and affecting the township only is subject 
to the control of the people assembled in town meeting. 

" Yet we may notice some minor differences between the New England 
town meeting and its sister in Michigan. In the latter the bye-laws and 
regulations are less varied in character. 

"This is due to the fact that in the West that part of the township 
where the inhabitants are most numerous, the village, and for whose 
regulation many laws are necessary, is set off as an incorporated village, 
just as in nearly all the central and western States. These villages have 
the privilege, either directly in village meeting or more often through a 
council of five or more trustees, of managing their own local affairs, their 
police, fire department, streets and waterworks. In some States, how- 
ever, they are considered parts of the township, and as such vote in town 
meeting on all questions touching township roads, bridges, the poor and 
schools." 1 

The conspicuous feature of this system is the reappearance 
of the New England Town meeting, though in a somewhat 
less primitive and at the same time less perfect form, because 
the township of the West is a more artificial organism than 
the rural Town of Massachusetts or Khode Island, where, 
until lately, everybody was of English blood, everybody knew 
everybody else, everybody was educated not only in book 
learning, but in the traditions of self-government. However, 
such as it is, the Illinois and Michigan system is spreading. 
Recent legislation in California, Nebraska, and other western 
States permits its adoption. It is already established in the 
two Dakotas, and seems destined to prevail over the whole 
North-West. 2 

In proportion to the extent in which a State has adopted 
the township system the county has tended to decline in im- 
portance. It is nevertheless of more consequence in the West 
than in New England. It has frequently an educational offi- 
cial who inspects the schools, and it raises a tax for aiding 
schools in the poorer townships. It has duties, which are 

1 "Local Government in Michigan," by E. \V. Bemis, in J. H. U. Studies, 
Baltimore, 1883. 

2 In Switzerland the rural Gemeinde or Commune is the basis of the whole 
self-governing system of the Canton. It has charge of the police, the poor, and 
schools, and owns lands. It has a primary assembly, meeting several times a 
year, which discusses communal business and elects an administrative council. 
It resembles in these respects an American Town or Township, but is subject 
for some purposes to the jurisdiction of an official called the Statthalter, ap- 
pointed by the Canton for a district comprising a number of communes. 



chap, xlviii LOCAL GOVERNMENT 607 



naturally more important in a new than in an old State, of lay- 
ing out main roads and erecting bridges and other public 
works. And sometimes it has the oversight of township ex- 
penditure. 1 The board of county commissioners consists in 
Michigan and Illinois of the supervisors of all the townships 
within the county ; in Wisconsin and Minnesota the commis- 
sioners are directly chosen at a county election. 

I pass to the mixed or compromise system as it appears 
in the other group of States, of which Pennsylvania, Ohio, 
Indiana, and Iowa may be taken as samples. In these States 
we find no Town meeting. Their township may have greater 
or less power, but its members do not come together in a pri- 
mary assembly; it elects its local officers, and acts only 
through and by them. In Ohio there are three township 
trustees with the entire charge of local affairs, a clerk and a 
treasurer. In Pennsylvania the township is governed by two 
or three supervisors, elected for three years, one each year, 
together with an assessor (for valuation purposes), a town 
clerk, three auditors, six school directors, elected for three 
years, two each year; and (where the poor are a township 
charge) two overseers of the poor. The supervisors may lay 
a rate on the township not exceeding one per cent on the val- 
uation of the property within its limits for the repair of roads, 
highways, and bridges, and the overseers of the poor may, 
with the consent of two justices, 2 levy a similar tax for the 
poor. But as the poor are usually a county charge, and as any 
ratepayer may work out his road tax in labour, township rates 
amount to very little. 

1 Mr. Bemis says : — " Inasmuch as many of the thousand or more townships 
of a State lack the political education and conservatism necessary for perfect 
self-control, since also many through lack of means cannot raise sufficient 
money for roads, bridges, schools, and the poor, a higher authority is needed, 
with the power of equalizing the valuation of several contiguous towns, of tax- 
ing the whole number for the benefit of the poorer, and of exercising a general 
oversight over township expenses. . . . All educators earnestly advocate 
county and State control of schools, that there may be uniformity of methods, 
and that the country districts, the nurseries of our great men in the past, may 
not degenerate. But two influences oppose : the fear of centralization on the 
part of the small towns which need it most, and the dislike of the rich cities 
to tax themselves for the country districts." — "Local Government in Michi- 
gan," ut supra, p. 18. 

2 Justices are elected by the people for five years, and commissioned by the 
governor of the State. 



608 THE STATE GOVERNMENTS part ii 

" In Iowa, 1 ' says Mr. Macy, "the civil township, which is usually six 
miles square, is a local government for holding elections, repairing roads, 
testing property, giving relief to the poor, and other business of local in- 
terest. Its officers are three trustees, one clerk, a road supervisor for 
each road district, one assessor, two or more justices of the peace, and 
two or more constables. The justices and constables are in a sense 
county officers. Yet they are elected by townships, 'and if they remove 
from the township in which they are chosen, they cease to be officers. 
The trustees are chosen for three years, but their terms of office are so 
arranged that one is chosen each year. The other officers are chosen for 
two years. If there is within the limits of the township an incorporated 
town or city, the law requires that at least one of the justices shall live 
within the town or city. The voters within the town or city choose a 
separate assessor. The voters of the city are not allowed to vote for road 
supervisors nor for the township assessor ; they vote for all other town- 
ship officers. . . . 

"The trustees of the township have various duties in the administra- 
tion of the poor laws. An able-bodied person applying for aid may be 
required to work upon the streets or highways. If a person who has 
acquired a legal settlement in the county, and who has no near relatives able 
to support him, applies to the trustees for aid, it is their duty to look into 
the case and furnish or refuse relief. If they decide to furnish it, they 
may do so by sending the person to the county poorhouse, or by giving 
him what they think needful in food, clothing, medical attendance, or 
money. If they refuse aid the applicant may go to the county super- 
visors, and they may order the trustees to furnish aid ; or if the supervi- 
sors think the trustees are giving aid unwisely they may order them to 
withhold it. In all cases where aid is furnished directly by the trustees 
to the applicant they are required to send a statement of the expense in- 
curred to the auditor of the county, who presents the bills to the board 
of supervisors. All bills for the relief of the poor are paid by the county, 
and the supervisors if they choose may take the entire business out of the 
hands of the trustees. But in counties where no poorhouse is provided, 
and where the supervisors make no provision for the poor, the trustees 
are required to take entire charge of the business. Yet in any case the 
county must meet the expenses. The trustees are the health officers of 
the township. They may require persons to be vaccinated ; they may re- 
quire the removal of filth injurious to health ; they may adopt bye-laws 
for preserving the health of the community and enforce them by fine and 
imprisonment." 1 

In most of these States the county overshadows the town- 
ship. Taking Pennsylvania as an example, we find each 
county governed by a board of three commissioners, elected 
for three years, upon a minority vote system, the elector being 

1 .1 Government Text-Book for Iowa Schools, pp. 21-28. 



chap, xlviii LOCAL GOVERNMENT 609 

allowed to vote for two candidates only. Besides these there 
are officers, also chosen by popular vote for three years, viz. a 
sheriff, coroner, prothonotary, registrar of wills, recorder of 
deeds, treasurer, surveyor, three auditors, clerk of the court, 
district attorney. Some of these officers are paid by fees, 
except in counties whose population exceeds 50,000, where sal- 
aries are usually provided. A county with at least 40,000 in- 
habitants is a judicial district, and elects its judge for a term of 
ten years. ISTo new county is to contain less than 400 square 
miles or 20,000 inhabitants. 1 The county, besides its judicial 
business and the management of the prisons incident thereto, 
besides its duties as respects highways and bridges, has educa- 
tional and usually also poor-law functions; and it levies its 
county tax and the State taxes through a collector for each 
township whom it and not the township appoints. It audits 
the accounts of townships, and has other rights of control over 
these minor communities exceeding those allowed by Michigan 
or Illinois. I must not omit to remark that where any local 
area is not governed by a primary assembly of all its citizens, 
as in those States where there is no Town meeting, and in all 
States in respect to counties, a method is frequently provided 
for taking the judgment of the citizens of the local area, be it 
township or county, by popular vote at the polls upon a specific 
question, usually the borrowing of money or the levying of a 
rate beyond the regular amount. This is an extension to local 
divisions of the so-called " plebiscitary " or referendum method, 
whose application to State legislation has been discussed in a 
preceding chapter. 2 It seems to work well, for by providing 
an exceptional method of meeting exceptional cases, it enables 
the ordinary powers of executive officials, whether in township 
or county, to be kept within narrow limits. 

Want of space has compelled me to omit from this sketch 
many details which might interest European students of local 
government, nor can I attempt to indicate the relations of the 
rural areas, townships and counties, to the incorporated villages 

1 See Constitution of Pennsylvania of 1873, Arts. xiv. xiii. and v. 

The average population of a county in Pennsylvania was, in 1890, 78,000. 
There are sixty-seven. 

2 As the primary meeting is in England dying out in the form of the parish 
vestry, so the plebiscitary method seems to be coming in to meet the now more 
democratic conditions of the country. See Chapter XXXIX. ante. 

VOL. I 2 R 



610 THE STATE GOVERNMENTS tart ii 

and cities which lie within their compass further than by ob- 
serving that cities, even the smaller ones, are usually separated 
from the townships, that is to say, the township government is 
superseded by the city government, while cities of all grades 
remain members of the counties, bear their share in county 
taxation, and join in county elections. Often, however, the 
constitution of a State contains special provisions to meet the 
case of a city so large as practically to overshadow or absorb 
the county, as Chicago does the county of Cook, and Cincin- 
nati, the county of Hamilton, and sometimes the city is made 
a county by itself. Of these villages and other minor munici- 
palities there are various forms in different States. Ohio, fc 
instance, divides her municipal corporations into (a) cities, of 
which there are two classes, the first class containing three 
grades, the second class four grades ; (b) villages, also with 
two classes, the first of from 3000 to 5000 inhabitants, the 
second of from 200 to 3000 ; and (c) hamlets, incorporated 
places with less than 200 inhabitants. 1 The principles which 
govern these organizations are generally the same ; the details 
are infinite, and incapable of being summarized here. Of minor 
incorporated bodies therefore I say no more. But the larger 
cities furnish a wide and instructive field of inquiry ; and to 
them three chapters must be devoted. 

1 Ohio Voters' Manual, Appendix K. Ohio contained in 1888: Cities — 1 
first class, first grade, 1 first class, second grade, 1 first class, third grade, 2 
second class, first grade, 1 second class, second grade, 9 second class, third 
grade, 23 second class, fourth grade ; Villages — 34 first class, 395 second class ; 
Hamlets — 32, besides 785 unincorporate places or towns. 



CHAPTER XLIX 

OBSERVATIONS OX LOCAL GOVERNMENT 

It may serve to clear up a necessarily intricate description if 
I add here a few general remarks applicable to all, or nearly all, 
•of the various systems of local government that prevail in the 
several States of the Union. 

I. Following American authorities, I have treated the New 
England type or system as a distinct one, and referred the 
North-western States to the mixed type. But the European 
reader may perhaps figure the three systems most vividly to 
his mind if he will divide the Union into three zones — North- 
ern, Middle, and Southern. In the northern, which, beginning 
at the Bay of Fundy, stretches west to Puget Sound, he will 
find a primary assembly, the Town or township meeting, in 
preponderant activity as the unit of local government. In the 
middle zone, stretching from New York to California, inclusive, 
along the fortieth parallel of latitude, he will find the town- 
ship dividing with the county the interests and energy of the 
people. In some States of this zone the county is the more 
important organism and dwarfs the township; in some the 
township seems to be gaining on the county ; but all are alike 
in this, that you cannot lose sight for a moment of either the 
smaller or the larger area, and that both areas are governed by 
elected executive officers. The third zone includes all the 
southern States ; in which the county is the predominant or- 
ganism, though here and there school districts and even town- 
ships are growing in significance. 

II. Both county and township are, like nearly everything 
else in America, English institutions which have suffered a 
sea change. " The Southern county is an attenuated English 
shire with the towns left out." 1 The Northern township is' an 

1 Professor Macy, " Our Government," an admirable elementary sketch for 
school use of the structure and functions of the Federal and State governments. 

611 



612 THE STATE GOVERNMENTS part ii 

English seventeenth-century parish, in which age the English 
parish was still in full working order as a civil no less than 
an ecclesiastical organization, holding common property, and 
often co-extensive with a town. The Town meeting is the 
English vestry, the selectmen are the churchwardens, or select 
vestrymen, called back by the conditions of colonial life into 
an activity fuller than they exerted in England even in the 
seventeenth century, and far fuller than they now retain. 1 In 
England local self-government, except as regards the poor law, 
tended to decay in the smaller {i.e. parish or township) areas ; 
the greater part of such administration as these latter needed, 
fell either to the justices in petty sessions or to officials ap- 
pointed by the county or by the central government, until the 
legislation of the present century began to create new and 
larger districts, especially poor law and sanitary districts, for 
local administration. 2 In the wider English area, the county, 
true self-government died out with the ancient Shire Moot, 
and fell into the hands of persons (the justices assembled in 
Quarter Sessions) nominated by the Crown, on the recommen- 
dation of the lord-lieutenant. It is only to-day that a system 
of elective county councils has been created by statute. In 
the American colonies the governor filled the place which the 
Crown held in England ; but even in colonial days there was 
a tendency to substitute popular election for gubernatorial 
nomination ; and county government, obeying the universal 
impulse, is now everywhere democratic in form ; though in 
the South, while slavery and the plantation sj^stem lasted, it 
was practically aristocratic in its spirit and working. 

1 Few things in English history are hetter worth studying, or have exercised 
a more pervading influence on the progress of events, than the practical disap- 
pearance from rural England of that Commune or Gemeinde which has re- 
mained so potent a factor in the economic and social as well as the political 
life of France and Italy, of Germany (including Austrian Germany) and of 
Switzerland. If Englishmen were half as active in the study of their own 
local institutions as Americans have heguu to he in that of theirs, we should 
have had a copious literature upon this interesting subject . 

2 However, the parish constables and way-wardens in some places con- 
tinue to be elected by popular vote; and the manor courts and courts leet 
were semi-popular institutions. Even now the parish vestry has some civil 
powers. 

In counties the coroner continued to be elected by the freeholders, but in 
a.d. 1888, the appointment was transferred by statute to the newly-created 
county councils. 



chap, xlix OBSERVATIONS ON LOCAL GOVERNMENT 613 

III. In England the control of the central government — 
that is, of Parliament — is now maintained not only by stat- 
utes defining the duties and limiting the powers of the various 
local bodies, but also by the powers vested in sundry depart- 
ments of the executive, the Local Government Board, Home 
Office, and Treasury, of disallowing certain acts of these 
bodies, and especially of supervising their expenditure and 
checking their borrowing. In American States the executive 
departments have no similar functions. The local authorities 
are restrained partly by the State legislature, whose statutes 
of course bind them, but still more effectively, because legis- 
latures are not always to be trusted, by the State Constitu- 
tions. These instruments usually — the more recent ones I 
think invariably — contain provisions limiting the amount 
which a county, township, village, school district, or other 
local area may borrow, and often also the amount of tax it may 
levy, by reference to the valuation of the property contained 
within its limits. Specimens of these provisions will be 
found in a note at the end of this volume. They have been 
found valuable in checking the growth of local indebtedness, 
which had become, even in rural districts, a serious danger. 1 
The total local debt (less sinking fund) was in 1890 : — 

Counties $145,048,045 (£29,000,000) 

School districts . . . 36,701,948 (7,340,000) 

Total .... 1181,749,993 (£36,340,000) 



This sum bears a comparatively small proportion to the 

total debt of the several States and of the cities, which was 
then — 

States $228,997,389 (£45,799,000) 

Cities over 4000 inhabitants . 646,507,644 (129,300,000) 
Municipalities under 4000 in- 
habitants .... 77,955,416 (£15,590,000) 

Total .... $953,460,449 (£190,689,000) 



1 See also Chapter XLIII. on " State Finance." These provisions are of 
course applied to cities also, which need them even more. They vary very 
much in their details, and in some cases a special popular vote is allowed to 
extend the limit. 



614 THE STATE GOVERNMENTS pakt ii 

County and school district debts declined eight per cent be- 
tween 1870 and 1880, whereas city indebtedness was then 
rapidly increasing. Since 1880 all three have risen, though 
slowly, except as regards the school district debt, which has 
doubled ; State debts on the other hand have fallen about twelve 
per cent in the same decade. 

IV. County and township or school district taxes are direct 
taxes, there being no octroi in America, and are collected along 
with State taxes in the smallest tax-gathering area, i.e. the 
township, where townships exist. Local rates are not, how- 
ever, as in England, levied on immovable property only, but 
also on personal property, or rather upon so much of it as the 
assessors can reach. Lands and houses are often assessed far 
below their true value, because the township assessors have an 
interest in diminishing the share of the county tax which will 
fall upon their township similar to the interest of the county 
assessors in diminishing the share of the State tax to be borne 
by their county. 1 Eeal property is taxed in the place where it is 
situate ; personalty only in the place where the owner resides. 2 
But the suffrage, in local as well as in State and National elec- 
tions, is irrespective of property, and no citizen can vote in 
more than one place. A man may have a dozen houses or farms 
in as many cities, counties, or townships : he will vote, even 
for local purposes, only in the spot where he is held to reside. 

The great bulk of local expenditure is borne by local taxes. 
But in some States a portion of the county taxes is allotted to 
the aid of school districts, so as to make the wealthier districts 
relieve the burden of the poorer, and often a similar subvention 
is made from State revenues. The public schools, which are 
everywhere and in all grades gratuitous, absorb a considerable 
part of the whole revenue locally raised, 3 and in addition to 
what taxation provides they receive a large revenue from the 
lands which, under Federal or State legislation, have been set 

1 As to this and the Boards of Equalization see Chapter XLIII. ante. 

2 Of course what is really the same property may be taxed in more than one 
place, e.g. a mining company may he taxed as a company in Montana, and the 
shares held hy individual proprietors be possibly also taxed in the several 
States in which these shareholders reside. 

3 The expenditure on public elementary schools in the United States is stated 
hy the V. S. Commissioner of Education (Report for 1888-89) at §121,930,000 
(£24,3815,000), public secondary schools, $10,199,000; total, 3132,129,000. 



chap, xlix OBSERVATIONS ON LOCAL GOVERNMENT 615 

apart for educational purposes. 1 On the whole, the burden of 
taxation in rural districts is not heavy, nor is the expenditure 
often wasteful, because the inhabitants, especially under the 
Town meeting system, look closely after it. 2 

V. It is noteworthy that the Americans, who are supposed 
to be especially fond of representative assemblies, have made 
little use of representation in their local government. The 
township is usually governed either by a primary assembly of 
all citizens or else, as in such States as Ohio and Iowa, by a 
very small board, not exceeding three, with, in both sets of 
cases, several purely executive officers. 3 In the county there 
is seldom or never a county board possessing legislative func- 
tions (though New York has begun to tend that way); usually 
only three commissioners or supervisors with some few execu- 
tive or judicial officers. Local legislation (except as it appears 
in the bye-laws of the Town meeting or selectmen) is discour- 
aged. The people seem jealous of their county officials, elect- 
ing them for short terms, and restricting each to a special 
range of duties. This is perhaps only another way of saying 
that the county, even in the South, has continued to be an 
artificial entity, and has drawn to itself no great part of the 
interest and affections of the citizens. Over five-sixths of the 
Union each county presents a square figure on the map, with 
nothing distinctive about it, nothing "natural" about it, in 
the sense in which such English counties as Kent or Cornwall 
are natural entities. It is too large for the personal interest 
of the citizens : that goes to the township. It is too small to 
have traditions which command the respect or touch the affec- 
tions of its inhabitants : these belong to the State. 4 

1 Students of economic science will hear without surprise that in some of 
the States which have the largest permanent school fund the effect on the effi- 
ciency of the schools, and on the interest of the people in them, has been per- 
nicious. In education, as well as in eleemosynary and ecclesiastical matters, 
endowments would seem to be a very doubtful benefit. 

2 Expenditure has however greatly risen. In the Massachusetts town of 
Quincy, for instance, the average annual levy of taxation between 1792 and 
1800 was $1000, about $1 to each inhabitant taxpayer: it is now $12.57. In 
1792 the education of each child in the public school cost $3 per annum : now' 
it costs $16 {The Centennial Milestone, by Charles F. Adams). 

3 In a few Western States the Town board has (like the New England 
selectmen) a limited taxing power, as well as administrative duties. 

4 In Virginia there used to be a county feeling resembling that of England, 
but this has vanished in the social revolution that has transformed the South. 



616 THE STATE GOVERNMENTS part ii 

VI. The chief functions local government has to discharge in 
the United States may be summarized in a few paragraphs : — 

Making and repairing roads and bridges. — These prime ne- 
cessities of rural life are provided for by the township, county, 
or State, according to the class to which a road or bridge be- 
longs. That the roads of America are proverbially ill-built 
and ill-kept is due partly to the climate, with its alternations 
of severe frost, occasional torrential rains (in the middle and 
southern States), and long droughts; partly to the hasty hab- 
its of the people, who are too busy with other things, and too 
eager to use their capital in private enterprises to be willing 
to spend freely on highways ; partly also to the thinness 
of population, which is, except in a few manufacturing dis- 
tricts, much less dense than in western Europe. In many 
districts railways have come before roads, so roads have been 
the less used and cared for. 

The administration of justice was one of the first needs 
which caused the formation of the county : and matters con- 
nected with it still form a large part of county business. The 
voters elect a judge or judges, and the local prosecuting offi- 
cer, called the district attorney, and the chief executive officer, 
the sheriff. 1 Prisons are a matter of county concern. Police 
is always locally regulated, but in the northern States more 
usually by the township than by the county. However, this 
branch of government, so momentous in continental Europe, 
is in America comparatively unimportant outside the cities. 
The rural districts get on nearly everywhere with no guardians 
of the peace, beyond the township constable ; 2 nor does the 
State government, except, of course, through statutes, exercise 
any control over local police administration. 3 In the rural parts 
of the eastern and middle States property is as safe as any- 
where in the world. In such parts of the West as are disturbed 
by dacoits, or by solitary highwaymen, travellers defend them- 
selves, and, if the sheriff is distant or slack, lynch law may 
usefully be invoked. The care of the poor is thrown almost 

1 The American sheriff remains something like whal the English sheriff was 
hefore his wings were clipped by legislation some seventy years ago. Even 
then, however, lie mostly acted by deputy. The justices and the county police 
have since that legislation largely superseded his action. 

2 Or, in States with no townships, some corresponding officer. 
8 As to recent experiments, sec p. 495 ante, State police. 



chap, xlix OBSERVATIONS OX LOCAL GOVERNMENT 617 

everywhere upon local and not upon State authorities, 1 and 
defrayed out of local funds, sometimes by the county, some- 
times by the township. The poor laws of the several States 
differ in so many particulars that it is impossible to give even 
an outline of them here. Little out-door relief is given, though 
in most States the relieving authority may, at his or their dis- 
cretion, bestow it ; and pauperism is not, and has never been, a 
serious malady, except in some five or six great cities, where 
it is now vigorously combated by volunteer organizations 
largely composed of ladies. The total number of persons re- 
turned as almshouse-paupers in the whole Union in 1880 was 
73,045. Adding 23,000 for persons in receipt of out-door re- 
lief, we have a proportion of 1 to 652 of the whole population. 2 
In England and Wales in 1892 there were 676,693 paupers 
(not including pauper lunatics 53,000, and vagrants 7000) to a 
population of 29,001,018, or 1 to 42 of population. 

Sanitation, which has become so important a department of 
English local administration, plays a small part in the rural 
districts of America, because their population is so much more 
thinly spread over the surface that the need for drainage and 
the removal of nuisances is less pressing; moreover, as the 
humbler classes are better off, unhealthy dwellings are far 
less common. Public health officers and sanitary inspectors 
would, over the larger part of the county, have little occu- 
pation. 3 

To education, I can refer only in passing, because the differ- 
ences between the arrangements of the several States are too 
numerous to be described here. It has hitherto been not only 
a more distinctively local matter, but one relatively far more 
important than in England, France, or Italy. And there is 
usually a special administrative body, often a special adminis- 
trative area, created for its purposes — the school committee 

1 In some States there are poor-law superintendents, and usually State 
institutions for particular classes of paupers, e.g. pauper lunatics. 

2 The census returns of 1890 (so far as published) do not give the number of 
out-door paupers, but so far as can be gathered from the (apparently untrust- 
worthy) figures of 1880, it is less thau one-third of that of in-door paupers. 
The figures in 1880 were 67,067 to 21,598. The proportion of paupers to 
population in England, which, in 1863, was 4.97 to 1000, was, in 1892, 23.3 to 
1000. 

3 Sanitation, however, has occupied much attention in the cities. Cleve- 
land claims to have the lowest death rate of any large city in the world. 



618 THE STATE GOVERNMENTS part ii 

and the school district. 1 The vast sum expended on public 
instruction has been already mentioned. Though primarily 
dealt with by the smallest local circumscription, there is a 
growing tendency for both the county and the State to inter- 
est themselves in the work of instruction by way of inspec- 
tion, and to some extent of pecuniary subventions. Not only 
does the county often appoint a county superintendent, but 
there are in some States county high schools and (in most) 
county boards of education, besides a State Board of Commis- 
sioners. 2 I need hardly add that the schools of all grades are 
more numerous and efficient in the northern and western than 
in the southern States. In old colonial days, when the Eng- 
lish Commissioners for Foreign Plantations asked for infor- 
mation on the subject of education from the governors of 
Virginia and Connecticut, the former replied, "I thank God 
there are no free schools or printing presses, and I hope we 
shall not have any these hundred years;" 3 and the latter, 
"One-fourth of the annual revenue of the colony is laid out in 
maintaining free schools for the education of our children." 
The disparity was prolonged and intensified in the South by 
the existence of slavery. Now that slavery has gone, the 
South makes rapid advances ; but the proportion of illiteracy, 
especially of course among the negroes, is still high. 4 

1 Though the school district frequently coincides with the township, it has 
generally (outside of New England) distinct administrative officers, and when 
it coincides it is often subdivided into lesser districts. 

2 In some States provision is made for the combination of several school 
districts to maintain a superior school at a central spot. 

3 Governor Sir William Berkeley, however, was among the Virginians who 
in 1660 subscribed for the erection in Virginia of " a college of students of the 
liberal arts and sciences." As to elementary instruction he said that Virginia 
pursued " the same course that is taken in England out of towns, every man 
according to his ability instructing his children. We have forty-eight parishes, 
and our ministry are well paid, and, by consent, should be better if they would 
pray oftener and preach less." — The College of William and Mary, by Dr. 
H. B. Adams. 

4 The percentage of persons unable to read to the whole population of the 
United States was, in 1880, 13.4 ; it was lowest in Iowa (2.4) , highest in South 
Carolina (48.2) and Louisiana (45.8). The percentage of persons unable to 
write was in the whole United States, 17 ; lowest in Nebraska (3.6), highest in 
South Carolina (55.4) and Alabama (50.9) . The census returns of 1890 respect- 
ing illiteracy have not yet been published (December 1892). 

It was recently proposed in Congress to reduce the surplus in the U. S. 
treasury by distributing sums among the States in aid of education, in propor- 
tion to the need which exists for schools, i.e. to their illiteracy. The objections 
on the score of economic policy, as well as of constitutional law, were obvi- 
ous, and stimulated a warm resistance to the bill. 



chap, xlix OBSERVATIONS ON LOCAL GOVERNMENT 619 

It will be observed that of the general functions of local 
government above described, three, viz. police, sanitation, and 
poor relief, are simpler and less costly than in England, and 
indeed in most parts of western and central Europe. It has 
therefore proved easier to vest the management of all in the 
same local authority, and to get on with a smaller number of 
special executive officers. Education is indeed almost the 
only matter which has been deemed to demand a special body to 
handle it. Nevertheless, even in America the increasing com- 
plexity of civilization, and the growing tendency to invoke 
governmental aid for the satisfaction of wants not previously 
felt, or if felt, met by voluntary action, tend to enlarge the 
sphere and multiply the functions of local government. 

VII. How far has the spirit of political party permeated 
rural local government ? I have myself asked this question a 
hundred times in travelling through America, yet I find it 
hard to give any general answer, because there are great diver- 
sities in this regard not only between different States, but 
between different parts of the same State, diversities due 
sometimes to the character of the population, sometimes to the 
varying intensity of party feeling, sometimes to the greater or 
less degree in which the areas of local government coincide 
with the election districts in which State senators or represent- 
atives are chosen. On the whole it would seem that county 
officials are apt to be chosen on political lines, not so much 
because any political questions come before them, or because 
they can exert much influence on State or Federal elections, 
as because these paid offices afford a means of rewarding polit- 
ical services and securing political adhesions. Each of the great 
parties usually holds its county convention and runs its "county 
ticket," with the unfortunate result of intruding national poli- 
tics into matters with which they have nothing to do, and of 
making it more difficult for good citizens outside the class of 
professional politicians to find their way into county administra- 
tion. However, the party candidates are seldom bad men, and 
the ordinary voter is less apt to vote blindly for the party nomi- 
nee than he would be in Federal or State elections. In the town- 
ship and rural school district party spirit is much less active. 
The offices are often unpaid, and the personal merits of the can- 
didates are better known to the voters than are those of the 



620 THE STATE GOVERNMENTS part ii 



politicians who seek for county office. 1 Kings and Bosses (of 
whom more anon) are not unknown even in rural New England. 
School committee elections are often influenced by party affilia- 
tions. But on the whole, the township and its government 
keep themselves pretty generally out of the political whirlpool : 
their posts are filled by honest and reasonably competent men. 
VIII. The apparent complexity of the system of local gov- 
ernment sketched in the last preceding chapter is due entirely 
to the variations between the several States. In each State it 
is, as compared with that of rural England, eminently simple. 
There are few local divisions, few authorities; the divisions 
and authorities rarely overlap. No third local area and local 
authority intermediate between township and county, and simi- 
lar to the English poor law Union (or District with its pro- 
posed Council), has been found necessary. Especially simple 
is the method of levying taxes. In most States a citizen pays 
at the same time, to the same officer, upon the same paper of 
demand, all his local taxes, and not only these, but also his 
State tax ; in fact, all the direct taxes which he is required to 
pay. The State is spared the expense of maintaining a sepa- 
rate collecting staff, for it leans upon and uses the local officials 
who do the purely local work. The tax-payer has not the worr}^ 
of repeated calls upon his cheque-book. 2 Nor is this simplicity 
and activity of local administration due to its undertaking 
fewer duties, as compared with the State, than is the case in 
Europe. On the contrary, the sphere of local government is 
in America unusually wide, 3 and widest in what may be called 
the most characteristically American and democratic regions, 
New England and the North-west. Americans often reply to 
the criticisms which Europeans pass on the faults of their 
State legislatures and the shortcomings of Congress by pointing 
to the healthy efficiency of their rural administration, which 

1 Sometimes the party " ticket " leaves a blank space for the voter to insert 
the name of the candidates for whom he votes for township offices. See the 
specimen Iowa ticket at the end of Chapter LXVI. 

2 City taxes, however, and the local school-tax, are sometimes paid sepa- 
rately. Some States give the option of paying half-yearly or quarterly; and 
many allow discount upon payment in advance. 

3 The functions are not perhaps so numerous as in England, but this is be- 
cause fewer functions are needed. The practical competence of local author- 
ities for undertaking any new functions that may become needed, and which 
the State may entrust to them, is great. 



chap, xlix OBSERVATIONS ON LOCAL GOVERNMENT 621 

enables them to bear with composure the defects of the higher 
organs of government, defects which would be less tolerable in 
a centralized country, where the national government deals 
directly with local affairs, or where local authorities await an 
initiative from above. 

Of the three or four types or systems of local government 
which I have described, that of the Town or township with its 
popular primary assembly is admittedly the best. It is the 
cheapest and the most efficient ; it is the most educative to the 
citizens who bear a part in it. The Town meeting has been 
not only the source but the school of democracy. 1 The action 
of so small a unit needs, however, to be supplemented, perhaps 
also in some points supervised, by that of the county, and in 
this respect the mixed system of the middle States is deemed 
to have borne its part in the creation of a perfect type. For 
some time past an assimilative process has been going on over 
the United States tending to the evolution of such a type. 2 In 
adopting the township system of New England, the north- 
western States have borrowed some of the attributes of the 
middle States county system. The middle States have devel- 
oped the township into a higher vitality than it formerly pos- 
sessed there. Some of the southern States are introducing the 
township, and others are likely to follow as they advance in 
population and education. It is possible that by the middle of 
next century there will prevail one system, uniform in its out- 
lines over the whole country, with the township for its basis, 
and the county as the organ called to deal with those matters 
which, while they are too large for township management, it 
seems inexpedient to remit to the unhealthy atmosphere of a 
State capital. 

1 In Rhode Island it was the Towns that made the State. 

2 This tendency is visible not least as regards the systems of educational 
administration. The National Teachers' Association of the U. S. not long 
since prepared an elaborate report on the various existing systems, and the 
more progressive States are on the alert to profit by one another's experience. 



CHAPTER L 

THE GOVERNMENT OF CITIES 

The growth of great cities has been among the most signifi- 
cant and least fortunate changes in the character of the popu- 
lation of the United States during the century that has passed 
since 1787. The census of 1790 showed only six cities with 
more than 8000, and only one with more than 40,000 inhabi- 
tants. In 1880 there were 286 exceeding 8000, forty exceeding 
40,000, twenty exceeding 100,000; while the census of 1890 
showed 443 exceeding 8000, 74 exceeding 40,000, 28 exceeding 
100,000. The ratio of persons living in cities exceeding 8000 
inhabitants to the total population was, in 1790, 3.35 per cent, 
in 1840, 8.52, in 1880, 22.57, in 1890, 29.12. And this change 
has gone on with accelerated speed notwithstanding the enor- 
mous extension of settlement over the vast regions of the 
West. Needless to say that a still larger and increasing pro- 
portion of the wealth of the country is gathered into the 
larger cities. Their government is therefore a matter of high 
concern to America, and one which cannot be omitted from a 
discussion of transatlantic politics. Such a discussion is, how- 
ever, exposed to two difficulties. One is that the actual 
working of municipal government in the United States is so 
inextricably involved with the party s} T stem that it is hard to 
understand or judge it without a comprehension of that sys- 
tem, an account of which I am, nevertheless, forced to reserve 
for subsequent chapters. The other is that the laws which 
regulate municipal government are even more diverse from one 
another than those whence I have drawn the account already 
given of State governments and rural local government. For 
not only has each State its own system of laws for the gov- 
ernment of cities, but within a State there is, as regards the 
cities, little uniformity in municipal arrangements. Larger 

622 



chap, l THE GOVERNMENT OE CITIES 623 

cities are often governed differently from the smaller ones; 
and one large city is differently organized from another. So 
far as the legal arrangements go, no general description, such 
as might be given of English mnnicipal governments under the 
Municipal Corporation Acts, is possible in America. I am 
therefore obliged to confine myself to a few features common 
to most city governments occasionally taking illustrations from 
the constitution or history of some one or other of the leading 
municipalities. 

The history of American cities, though striking and instruc- 
tive, has been short. Of the ten greatest cities of to-day only 
four — Baltimore, New Orleans, New York, and Philadelphia 
— were municipal corporations in 1820. 1 Every city has re- 
ceived its form of government from the State in which it 
stands, and this form has been repeatedly modified. Formerly 
each city obtained a special charter ; now in nearly all States 
there are general laws under which a population of a certain 
size and density may be incorporated. Yet, as observed above, 
special legislation for particular cities, especially the greater 
ones, continues to be very frequent. 

Although American city governments have a general resem- 
blance to those English municipalities which were their first 
model, 2 their present structure shows them to have been much 
influenced by that of the State governments. We find in all 
the larger cities — 

A mayor, head of the executive, and elected directly by the 
voters within the city. 

Certain executive officers or boards, some directly elected by 
the city voters, others nominated by the mayor or chosen 
by the city legislature. 

A legislature, consisting usually of two, but sometimes of 
one chamber, directly elected by the city voters. 

Judges, usually elected by the city voters, but sometimes 
appointed by the State. 

What is this but the frame of a State government applied to 

1 The term " city " denotes in America what is called in England a munic- 
ipal borough, and has nothing to do with either size or antiquity. The con- 
stitution or frame of government of a city, which is always given by a State 
statute, general or special, is called its charter. 

2 American municipalities have, of course, never been, since the Revolution, 
close corporations like most English boroughs before the Act of 1835, 



624 THE STATE GOVERNMENTS part 11 

the smaller area of a city ? The mayor corresponds to the 
Governor, the officers or boards to the various State officii 
and boards (described in Chapter XLI.) elected, in most case!-., 
by the people ; the aldermen and common council (as they are 
generally called) to the State Senate and Assembly ; the city 
elective judiciary to the State elective judiciary. 1 

A few words on each of these municipal authorities. The 
mayor is by far the most conspicuous figure in city govern- 
ments, much more important than the mayor of an English or 
Irish borough, or the provost of a Scotch one. He holds office, 
sometimes for one year, 2 but now more frequently for two, 3 
three, or even five 4 years. In some cities he is not re-eligible. 
He is directly elected by the people of the whole city, and is 
usually not a member of the city legislature. 5 He has, almost 
everywhere, a veto on all ordinances passed by that legislature, 
which, however, can be overridden by a two-thirds majority. 
In many cities he appoints some among the heads of depart- 
ments and administrative boards, though usually the approval 
of the legislature or of one branch of it 6 is required. Quite 
recently some city charters have gone so far as to make him 
generally responsible for all the departments (subject to the 
control of supply by the legislative body), and therewith liable 
to impeachment for misfeasance. He receives a considerable 
salary, varying with the size of the city, but sometimes reach- 
ing $10,000, the same salary as that allotted to the justices 
of the Supreme Federal Court. It rests with him, as the chief 
executive officer, to provide for the public peace, to quell riots, 
and, if necessary, to call out the militia. 7 He often exerts, in 

1 American municipal governments are of course subject to three general 
rules : that they have no powers other than those conferred on them by the 
State, that they cannot delegate their powers, and that then legislation and 
action generally is subject to the constitution and statutes as well of the 
United States as of the State to which they belong. 

2 Generally in the cities of the second rank and in Boston. 

3 New York, Brooklyn, Chicago, Baltimore, San Francisco, Cincinnati, and 
generally in the larger cities. 

4 Philadelphia, St. Louis. 

5 In Chicago and San Francisco the mayor sits in the legislature. 

6 The Brooklyn charter allows the mayor to appoint heads of departments 
without any concurrence of the council, in the belief that thus responsibility can 
be better fixed upon him ; and New York has lately (1884) takes the same course. 

7 Some idea of the complexity due to the practice of giving special charters 
to particular cities, or passing special bills relating to them, may be gathered 



chap, l THE GOVERNMENT OF CITIES 625 

practice, some discretion as to the enforcement of the law ; he 
may, for instance, put in force Sunday Closing Acts or regula- 
tions, or omit to do so. 

The practical work of administration is carried on by a 
number of departments, sometimes under one head, sometimes 
constituted as boards or commissions. The most important 
of these are directly elected by the people, for a term of one, 
two, three, or four years. Some, however, are chosen by the 
city legislature, some by the mayor with the approval of the 
legislature or its upper chamber. In most cities the chief 
executive officers have been disconnected from one another, 
owing no common allegiance, except that which their financial 
dependence on the city legislature involves, and communicating 
less with the city legislature as a whole than with its commit- 
tees, each charged with some one branch of administration, and 
each apt to job it. 

Education has been generally treated as a distinct matter, 
with which neither the mayor nor the city legislature has been 
suffered to meddle. It is committed to a Board of Education, 
whose members are separately elected by the people, or, as in 
Brooklyn, appointed by the mayor, levy (though they do not 
themselves collect) a separate tax, and have an executive staff 
of their own at their disposal. 1 

The city legislature usually consists in small cities of one 
chamber, in large ones of two, the upper of which generally 
bears the name of the Board of Aldermen, the lower that of 
the Common Council. 2 All are elected by the citizens, gener- 

from the fact that in Ohio, for instance, the duties of the mayor vary greatly 
in the six chief cities of the State. There are duties which a mayor has in 
Cincinnati only, out of all the cities of the State ; others which he has in all 
the cities except Cincinnati ; others in Cincinnati and Toledo only ; others in 
Cleveland, Toledo, Columbus, Dayton, and Springfield only; others in Cleve- 
land and Toledo only ; others in Cleveland only ; others in Toledo only ; others 
in Columbus and Dayton only. These variations are the result not of ordi- 
nances made by each city for itself, but of State legislation. 

1 There are some points of resemblance in this system to the government of 
English cities, and especially of London. The English common councils elect 
certain officials and manage their business by committees. In London the 
sheriffs and chamberlain are elected by the liverymen. Note, however, that 
in no English borough or city do we find a two-chambered legislature, nor 
(except as last aforesaid in London) officials elected by popular vote, nor a 
veto on legislation vested in the mayor. 

2 Some large cities, however (e.g. New York and Brooklyn, Chicago with its 
36 aldermen, San Francisco with its 12 supervisors), have only one chamber. 

VOL. I 2 S 



626 THE STATE GOVERNMENTS part ii 

ally in wards, but the upper house occasionally by districts or 
on what is called a " general ticket," i.e. a vote over the whole 
city. 1 Usually the common council is elected for one year, or 
at most for two years, the upper chamber frequently for a 
longer period. 2 Both are usually unpaid in the smaller cities, 
sometimes paid in the larger. 3 All city legislation, that is to 
say, ordinances, bye-laws, and votes of money from the city 
treasury, are passed by the council or councils, subject in 
many cases to the mayor's veto. Except in a few cities gov- 
erned by very recent charters, the councils have some control 
over at least the minor officials. Such control is exercised by 
committees, a method borrowed from the State and National 
legislatures, and suggested by the same reasons of convenience 
which have established it there, but proved by experience to 
have the evils of secrecy and irresponsibility as well as that 
of disconnecting the departments from one another. 

The city judges are only in so far a part of the municipal 
government that in most of the larger cities they are elected 
by the citizens, like the other chief officers. There are usually 
several superior judges, chosen for terms of five years and 
upwards, and a larger number of police justices, 4 generally 
for shorter terms. Occasionally, however, the State has pru- 
dently reserved to itself the appointment of judges. Thus 
in New Haven, Connecticut (population in 1890, 81,298) — 

"Constables, justices of the peace, and a sheriff, are elected by the 
citizens, but the city courts derive existence directly from the State legis- 
lature. . . . The mode of selecting judges is this : the New Haven 
county delegation to the dominant party in the legislature assembles in 

1 In some few cities, among which are Chicago and (as respects police mag- 
istrates and school directors) Philadelphia, the plan of minority representation 
has heen to some extent adopted hy allowing the voter to cast his vote for 
two candidates only when there are three places to be rilled. It was tried in 
New York, but the State Court of Appeals held it unconstitutional. So far 
as I can ascertain, this method has in Philadelphia proved rather favourable 
than otherwise to the "machine politicians," who can rely on their masses of 
drilled voters. 

2 Sometimes the councilman is required hy statute to be a resident in the 
ward he represents. 

3 Boston and Cincinnati give no salary, St. Louis pays members of both its 
councils $300 (£60) a year, Baltimore, $1000 (£200). New York pays and 
Brooklyn does not. 

4 Sometimes (as in St. Louis) the police justices are nominated by the 
mayor. 



THE GOVERNMENT OF CITIES 627 



caucus and nominates two of the same political faith to be respectively 
judge and assistant judge of the New Haven city court. Their choice is 
adopted by their party, and the nominations are duly ratified, often by a 
strict party vote. Inasmuch as the legislature is usually Republican, and 
the city of New Haven is unfailingly Democratic, these usages amount to 
a reservation of judicial offices from the ' hungry and thirsty ' local ma- 
jority, and the maintenance of a certain control by the Republican coun- 
try towns over the Democratic city." 1 

It need hardly be said that all the above officers, from the 
mayor and judges downwards, are, like State officers, elected 
by manhood suffrage, Their election is usually made to coin- 
cide with that of State officers, perhaps also of Federal con- 
gressmen. This saves expense and trouble. But as it not 
only bewilders the voter in his choice of men by distracting 
his attention between a large number of candidates and places, 
but also confirms the tendency, already strong, to vote for city 
officers on party lines, there has of late years been a movement 
in some places to have the municipal elections fixed for a 
different date from that of State or Federal elections, so that 
the undistracted and non-partisan thought of the citizens may 
be given to the former. 2 

At present the disposition to run and vote for candidates 
according to party is practically universal, although the duty 
of party loyalty is deemed less binding than in State or Federal 
elections. When both the great parties put forward question- 

1 " During the session of the legislature in March 1885 this argument was 
put forward in auswer to a Democratic plea for representation upon the city 
court bench. ' The Democrats possess all the other offices in New Haven. It's 
only fair that the Republicans should have the city court.' Each party ac- 
cepted the statement as a conclusive reason for political action. It would be 
gratifying to find the subject discussed upon a higher plane, and the incum- 
bents of the offices who had done well continued from term to term without 
regard to party affiliations. But in the present condition of political morals, 
the existing arrangements are probably the most practicable that could be 
made. It goes without saying that country districts are, as a rule, more deserv- 
ing of political power than are cities. If the city judges were locally elected 
upon the general party ticket, the successful candidates would often be under 
obligations to elements in the community which are the chief source and nurse 
of the criminal class — an unseemly position for a judge." — Mr. Charles H. 
Levermore in his interesting sketch of the "Town and City Government of 
New Haven " (p. 77). 

2 On the other hand, there are cities which hope to draw out a larger vote, 
and therefore obtain a better choice, by putting their municipal elections at 
the same time as the State elections. This was lately done by Minneapolis. 



628 THE STATE GOVERNMENTS part ii 

able men, a non-partisan list, or so-called "citizens' ticket," 
may be run by a combination of respectable men of both par- 
ties. Sometimes this attempt succeeds. However, though 
the tenets of Republicans and Democrats have absolutely 
nothing to do with the conduct of city affairs, though the sole 
object of the election, say of a city comptroller or auditor, 
may be to find an honest man of good business habits, four- 
fifths of the electors in nearly all cities give little thought to 
the personal qualifications of the candidates, and vote the 
" straight out ticket." 

The functions of city governments may be distributed into 
three groups — (a) those which are delegated by the State out 
of its general coercive and administrative powers, including 
the police power, the granting of licences, the execution of 
laws relating to adulteration and explosives ; (6) those which 
though done under general laws are properly matters of local 
charge and subject to local regulation, such as education and 
the care of the poor ; and (c) those which are not so much of a 
political as of a purely business order, such as the paving and 
cleansing of streets, the maintenance of proper drains, the pro- 
vision of water and light. In respect of the first, and to some 
extent of the second of these groups, the city may be properly 
deemed a political entity ; in respect of the third it is rather to 
be compared to a business corporation or company, in which 
the tax-payers are shareholders, doing, through the agency of 
the city officers, things which each might do for himself, though 
with more cost and trouble. All three sets of functions are 
dealt with by American legislation in the same way, and are 
alike given to officials and a legislature elected by persons of 
whom a large part pay no direct taxes. Education, however, 
is usually detached from the general city government and 
entrusted to a separate authority, 1 while in some cities the 
control of the police has been withheld or withdrawn from 
that government, and entrusted to the hands of a separate 
board. 2 The most remarkable instance is that of Boston, in 
which city a Massachusetts statute of 1885 entrusts the police 

1 Though sometimes, as in Baltimore, the city legislature appoints a Board 
of Education. Unhappily, in some cities education is " within politics,'' and, 
as may be supposed, with results unfavourable to the independence and even 
to the quality of the teachers. a So in Baltimore. 



chap, l THE GOVERNMENT OF CITIES 629 

department and the power to license, regulate, and restrain the 
sale of intoxicating liquors, to a special board of three persons, 
to be appointed for five years by the State governor and coun- 
cil. Both political parties are directed by the statute to be 
represented on the board. (This is a frequent provision in 
recent charters.) The city pays on the board's requisition all 
the expenses of the police department. In New York the po- 
lice commissioners are appointed by the mayor, but in order to 
"take the department out of politics" an unwritten under- 
standing has been established that he, though himself always 
a partisan, shall appoint two Democratic and two Eepubli- 
can commissioners. The post of policeman is " spoils " of the 
humbler order, but spoils equally divided between the parties. 
Taxes in cities, as in rural districts, are levied upon personal 
as well as real property ; and the city tax is collected along 
with the county tax and State tax by the same collectors. 
There are, of course, endless varieties in the practice of differ- 
ent States and cities as to methods of assessment and to the 
minor imposts subsidiary to the property tax. Both real and 
personal property are usually assessed far below their true 
value, 1 the latter because owners are reticent, the former because 
the city assessors are anxious to take as little as possible of the 
State and county burden on the shoulders of their own com- 
munity, though in this patriotic effort they are checked by the 
county and State Boards of Equalization. Taxes are usually so 
much higher in the larger cities than in the country districts or 
smaller municipalities, that there is a strong tendency for rich 
men to migrate from the city to its suburbs in order to escape 
the city collector. Perhaps the city overtakes them, extending 
its limits and incorporating its suburbs ; perhaps they fly 
farther afield by the railway and make the prosperity of 
country towns twenty or thirty miles away. The unfortunate 
consequence follows, not only that the taxes are heavier for 
those who remain in the city, but that the philanthropic and 
political work of the city loses the participation of those who 
ought to have shared in it. For a man votes in one place 
only, the place where he resides and pays taxes on his per- 

1 In New York the assessors' valuation of real estate is said to be about 60 
per cent of its true value, in Chicago between 20 and 30 per cent of that value 
{City Government of Philadelphia, p. 323). 



630 THE STATE GOVERNMENTS part ii 

sonalty ; and where he has no vote, he is neither eligible for 
local office nor deemed entitled to take a part in local political 
agitation. 

It may conduce to a better comprehension of the newest 
frame of city government if I present an outline of the munic- 
ipal system in two recently reformed cities. In both of them 
there had been serious maladministration due to causes to be 
presently explained, and many efforts had been made to apply 
drastic remedies. In one, St. Louis, a completely new charter 
has been enacted, embodying, in the main, the views of mu- 
nicipal reformers. In the other, Boston, a number of specific 
improvements have been effected in a charter dating from 
1854. I begin with the latter as the older city. 1 

Boston (population in 1890, 448,477) is divided into twenty-four wards 
and twelve aldermanic districts, each ward being subdivided into voting 
precincts with about five hundred voters in each. Municipal elections are 
held annually early in December. 

The mayor is elected for one year by the people of the whole city ; 
receives $10,000 a year; appoints, subject to confirmation by the board 
of aldermen, the chief officers and boards (except the police board and 
street commissioners), and may remove any of them for cause. He 
summons the heads of departments at least once a month for consultation. 
Every ordinance, order, resolution, or vote of the city council, and every 
act of either branch or of the school committee involving the expenditure 
of money, is presented to him for approval, and if disapproved, falls to 
the ground, unless reconsidered and passed by a two-thirds vote. He 
may veto separate items in a general appropriation bill. The depart- 
ments send their estimates to him, which he submits to the council with 
his recommendations thereon. All drafts on the city treasury, and all 
contracts exceeding $1000, require his written approval. 2 [Note that he 
is not himself a member of either branch of the city legislature. ] 

The legislature, called collectively the City Council, consists of two 
branches, viz. the Board of Aldermen, elected one from each of twelve 
districts, and the Common Council of seventy-two members, three for 
each ward. Both are elected annually. They are restricted to purely 
legislative (including financial) functions. 

The executive departments are the following : — 

Elected by popular vote. — Three street commissioners, one each year 
for a three years' term, with power to lay out streets and assess damages. 

1 Abstracted from Mr. James M. Bugbee's paper, entitled the " City Govern- 
ment of Boston," in J. H. U. Studies, fifth series (Baltimore, 1887). 

2 The mayor has a number of minor duties. "It appears from the latest 
edition of the Ordinances that no one can climb a tree, or throw stones, or lie 
on the grass on the Common, without getting a permit from the mayor." 



chap, l THE GOVERNMENT OE CITIES 631 

When the estimated cost of a street exceeds $10,000 the concurrence of 
the council is required. 

Appointed by mayor and aldermen. — Superintendent of streets, charged 
with paving, repairing, and watering the streets. 

Eire department — three commissioners serving three years. 

Head of department for the survey and inspection of buildings. Term 
three years. 

Health department — three commissioners, with large sanitation powers 
for preserving public health and abating nuisances. Term three years. 

Overseers of the poor — four each year. Term three years. 1 They 
manage out-door relief and the trust funds which the city holds for that 
purpose. No salary. 

Board of public institutions — three commissioners (substituted in 1889 
for nine directors), charged with the care of the alms-houses, houses of 
correction, of industry, of reformation, house for pauper children, and 
lunatic hospital. Term three years. No salary. It is in these institu- 
tions that in-door relief is given. 

City hospital board — five persons. Term five years. 

Public library, supported by money voted by the council, five trustees. 
Term five years. No salary. 

Park department — three commissioners. Term three years. No 
salary. 2 

Water department — board of three which controls the waterworks 
and fixes price of water. Term three years. 

Assessors' department — five chief assessors, to value real and personal 
property, and assess city, county, and State taxes. Term three years. 

City collector, who levies tax bills delivered to him by the assessors. 
Appointed annually. 

The following further officers are appointed by the mayor and aldermen. 
For five years — five commissioners of Cedar Grove Cemetery (unpaid); 
for three years — three registrars of voters, six sinking fund commis- 
sioners (unpaid); for one year — two record commissioners (unpaid), 
five directors of ferries (unpaid), five trustees of Mount Hope Cemetery 
(unpaid), city treasurer, city auditor, corporation counsel, city solicitor, 
superintendent of public buildings, city architect, superintendent of street 
lights, superintendent of sewers, superintendent of printing, superintend- 
ent of Eaneuil Hall Market, superintendent of bridges, city surveyor, 
water registrar, registrar of births, deaths, and marriages, harbour master 
and ten assistants, commission for certain bridges, inspector of provi- 
sions, inspector of milk and vinegar, sealer (and four deputy sealers) of 
weights and measures, nine hundred and sixty-eight election officers and 
their deputies. 

i Formerly the people, subsequently the council, elected the overseers. As 
under both plans men sometimes got in who jobbed for their own benefit, the 
present scheme was adopted in 1885. 

2 This board supervises the suburban parks, the Common, and the Public 
Garden (together with smaller open spaces), within the city, being under the 
charge of a superintendent separately appointed. 



632 THE STATE GOVERNMENTS part ii 

The above (so far as paid) are paid by salary fixed by the council. 
The following officers, also appointed annually by mayor and aldermen, 
are paid by fees : — 

Inspector of lime, three inspectors of petroleum, fifteen inspectors of 
pressed hay, culler of hoops and staves, three fence viewers, ten field 
drivers and pound keepers, three surveyors of marble, nine superintendents 
of hay scales, four measurers of upper leather, fifteen measurers of wood 
and bark, twenty measurers of grain, three weighers of beef, thirty-eight 
weighers of coal, five weighers of boilers and heavy machinery, four 
weighers of ballast and lighters, ninety-two undertakers, one hundred 
and fifty constables. 

In addition to these there is a city clerk, city messenger, and clerk of 
committees elected by concurrent vote of the City Council, a clerk of the 
common council elected by that body, and many county officers elected 
by the voters of the county of Suffolk, in which Boston stands, and of 
which Boston furnishes nearly the whole population. The county judges, 
however, are not elected, but, like all other judges in Massachusetts, are 
appointed by the Governor and Council to hold office quam diu se bene 
gesserint. Exclusive of election officers and fee-paid officers, the mayor 
and aldermen appoint 107 persons, of whom 65 are appointed for one 
year, 61 receive salaries, and 41 serve gratuitously. In the present city 
administration there are forty separate departments and offices, most of 
them with a large number of subordinates and workmen. This " multi- 
plicity of departments and officials not only involves the city in expenses 
not to be measured merely by the salaries paid to superfluous officials," 1 
but affords a large field for the exercise of party patronage, a patronage 
partially limited, but as regards subordinates only, by the Massachusetts 
Civil Service Act of 1884, which is administered by a Civil Service Com- 
mission. 

Distinct from the rest of the city government is the School Committee 
of twenty-four members, elected on a general ticket over the whole city, 
and serving for three years, eight retiring annually. 

Also distinct is the Police Department, which, as already observed, has 
by a statute of 1885 been entrusted to a Board of Police, appointed by the 
Governor and Council, of three citizens of Boston, with power to " appoint, 
establish, and organize " the police, and to license, regulate, and restrain 
the sale of intoxicating liquors. 2 In case of riot, the mayor can take 
command of the police force. 

This amended scheme, although generally held to be an 
improvement on that which preceded it, has not given entire sat- 

1 Report of the Commission of 1881. 

2 In the cities and towns of Massachusetts the question of granting licences 
for the sale of intoxicants is annually submitted to popular vote. See note to 
Chapter LXVI. At present in Boston and most cities the grant has been voted. 
The annual revenue which the municipality derives from licences is in Boston 
over $500,000 (£100,000) per annum. 



THE GOVERNMENT OF CITIES 633 



isfaction. It is thought that too much executive power still 
remains with the aldermen, and that they unduly control the 
mayor in appointments. Nor has the control of the police by 
a State Board worked well. The liquor traffic is no better 
regulated, while the irresponsibility to the city of the Police 
Board is found inconvenient. 

The city of St. Louis (population in 1890, 451,770) is governed 
by a charter or scheme of government which, in pursuance of 
a special provision for that purpose in the last Constitution of 
Missouri (1875), was prepared by a board of thirteen free- 
holders elected by the people of the city and county of St. 
Louis, and was finally adopted and ratified by the people them- 
selves by a vote at the polls, August 22, 1876. 1 

St. Louis is divided into 28 wards and 244 voting precincts. Elections 
are governed by a strict law, which generally prevents frauds, and are 
quiet, all drinking saloons being closed till midnight. 

The mayor is elected by the people for four years, receives §5000 
salary, is not a member of the city Assembly, with which he communi- 
cates by messages. He has the power of returning any bill passed by the 
Assembly, subject to its power to reconsider and pass by a two-thirds 
vote. He recommends measures to the Assembly, submits reports from 
heads of departments, and has a great variety of minor executive duties. 
He appoints to a number of important offices, but in conjunction with 
the Council. For the sake of protecting him from the pressure of those 
to whom he owes his election, these appointments are made by him at the 
beginning of the third year of his own term, and for a term of four years. 

The Assembly is composed of two houses. The Council has thirteen 
members, elected for four years by "general ticket" : one-third go out 
of office every second year. The House of Delegates has twenty-eight 
members, one from each ward. Each Assembly man receives $300 a 
year, besides his reasonable expenses incurred in the city service. The 
Assembly has a general legislative power and supervision over all depart- 
ments, its borrowing and taxing powers being, however, limited. 

The administrative departments are the following, viz. : — Thirteen 
officers elected by the people, viz. comptroller, treasurer, auditor, regis- 
trar, collector, marshal, inspector of weights and measures, president of 
board of assessors, coroner, sheriff, recorder of deeds, public administra- 
tor, president of board of public improvements. 

Twenty Boards or officers are appointed, most of them for four years, 
by the mayor with the approval of the Council, viz. : — Board of public 
improvements, consisting of street commissioner, water do., harbour do., 

1 1 abridge the following account from a valuable paper by Mr. Marshall S. 
Snow (professor of history in Washington University, St. Louis), on the " City 
Government of St. Louis," in J. H. U. Studies, third series. 



634 THE STATE GOVERNMENTS part ii 

park do., sewer do., assessor and collector of water rates, commissioiier 
of public buildings, commissioner of supplies, commissioner of health, 
inspector of boilers, city counsellor, jury commissioner, recorder of votes, 
city attorney, two police court judges, jailer, superintendent of workhouse, 
chief fire engineer, gas inspector, assessors, and several city contractors 
and minor officers. 

The four police commissioners who, along with the mayor, are charged 
with the public safety of St. Louis, are appointed by the Governor of 
Missouri, with the view of keeping this department " out of city politics." 
In 1886 the police force was 593 men strong, besides 200 private watch- 
men, paid by their employers, but wearing a uniform and sworn in by 
the police board. 

The city School Board consists of 28 members, one from each ward, 
elected for three years, one-third retiring annually. It is independent of 
the mayor and Assembly, chooses its staff and all teachers, has charge of 
the large school funds, and levies a school tax, which, however, the city 
collector collects. 

The strong points of this charter are 'deemed to be "the length of 
term of its municipal officers ; the careful provisions for honest registra- 
tion and the party purity of elections ; the checks on financial adminis- 
tration and limitations of the debt, and the fact that the important offices 
to which the mayor appoints are not vacant till the beginning of his third 
year of office, so that as rewards of political work done during a heated 
campaign they are too far in the distance to prejudice seriously the 
merits of an election." * 

On the whole the charter has worked well. The public 
works are efficiently managed, and the city credit stands high. 
Nevertheless the European reader will feel some surprise at 
the number of elective offices and at the limited terms for 
which all important offices are held. He will note that even 
in democratic America the control of the police by city poli- 
ticians has been deemed too dangerous to be suffered to remain 
in their unclean hands. And he will contrast what may be 
called the political character of the whole city constitution 
with the somewhat simpler and less ambitious, though also 
less democratic arrangements, which have been found sufficient 
for the management of European cities. 

1 Snow, ut supra. 



CHAPTER LI 

THE WORKING OF CITY GOVERNMENTS 

Two tests of practical efficiency may be applied to the gov- 
ernment of a city : What does it provide for the people, and 
what does it cost the people ? Space fails me to apply in de- 
tail the former of these tests, by showing what each city does 
or omits to do for its inhabitants ; so I must be content with 
observing that in the United States generally constant com- 
plaints are directed against the bad paving and cleansing of 
the streets, the non-enforcement of the laws forbidding gam- 
bling and illicit drinking, and in some places against the sani- 
tary arrangements and management of public buildings and 
parks. It would appear that in the greatest cities there is far 
more dissatisfaction than exists with the municipal adminis- 
tration in such cities as Glasgow, Manchester, Dublin, Ham- 
burg, Lyons. 

The following indictment of the government of Philadelphia 
is somewhat exceptional in its severity, and however well 
founded as to that city, must not be taken to be typical. A 
memorial presented to the Pennsylvania legislature in 1883 by 
a number of the leading citizens of the Quaker City contained 
these words : — 

11 The affairs of the city of Philadelphia have fallen into a most de- 
plorable condition. The amounts required annually for the payment of 
interest upon the funded debt and current expenses render it necessary to 
impose a rate of taxation which is as heavy as can be borne. 

"In the meantime the streets of the city have been allowed to fall into 
such a state as to be a reproach and a disgrace. Philadelphia is now 
recognized as the worst-paved and worst-cleaned city in the civilized 
world. 

11 The water supply is so bad that during many weeks of the last winter 
it was not only distasteful and unwholesome for drinking, but offensive 
for bathing purposes. 

" The effort to clean the streets was abandoned for months, and no at- 

635 



636 THE STATE GOVERNMENTS part ii 

tempt was made to that end until some public-spirited citizens, at their 
own expense, cleaned a number of the principal thoroughfares. 

"The system of sewerage and the physical condition of the sewers is 
notoriously bad — so much so as to be dangerous to the health and most 
offensive to the comfort of our people. 

"Public work has been done so badly that structures have had to be re- 
newed almost as soon as finished. Others have been in part constructed at 
enormous expense, and then permitted to fall to decay without completion. 

" Inefficiency, waste, badly-paved and filthy streets, unwholesome and 
offensive water, and slovenly and costly management, have been the rule 
for years past throughout the city government. 1 ' 

In most of the points comprised in the above statement, 
Philadelphia was probably at that date — for her government 
has since been reformed — among the least fortunate of Ameri- 
can cities. He, however, who should interrogate one of the 
" good citizens " of Baltimore, Cincinnati, New Orleans, New 
York, Chicago, San Francisco, would have heard then, and 
would hear now, similar complaints, some relating more to the 
external condition of the city, some to its police administra- 
tion, but all showing that the objects for which municipal 
government exists have been very imperfectly attained. 

The other test, that of expense, is easily applied. Both the 
debt and the taxation of American cities have risen with un- 
precedented rapidity, and now stand at an alarming figure. 

A table of the increase of population, valuation, taxation, 
and debt, in fifteen of the largest cities of the United States, 
from 1860 to 1875 shows the following result : — 

Increase in population 70.5 per cent. 

" taxable valuation .... 156.9 " 

debt ...... 270.9 

" taxation 363.2 1 " 

Looking at some individual cases, Ave find that the debt rose 
as follows : — 

Philadelphia . . . 1867, $35,000,000 — 1877, $64,000,000 

Chicago . . . . " 4,750,000— " 13,456,000 

St. Louis ..." 5,500,000— " 16,500,000 

Pittsburg ..." 3,000,000— " 13,000,000 2 

1 Municipal Development of Philadelphia, by Messrs. AUinson and Penrose, 
p. 275. 

2 Article "Cities" (by Mr. S. Stern) in Amer. Cyclop, of Polit. Science. 
He observes: "The cost of opening or improving highways and of placing 



chap, li THE WORKING OF CITY GOVERNMENTS 637 



Much, of this debt is doubtless represeuted by permanent 
improvements, yet for another large, and in some cities far 
larger, part there is nothing to show; it is due to simple 
waste or to malversation on the part of the municipal author- 
ities. 

As respects current expenditure, New York in 1884 spent 
on current city purposes, exclusive of payments on account of 
interest on debt, sinking fund, and maintenance of judiciary, 
the sum of $20,232,786 — equal to $16.76 (£3: 8s.) for each 
inhabitant (census of 1880). In Boston, in the same year, the 
city expenditure was $9,909,019 — equal to $27.30 (£5 : 9 : 3) 
for each inhabitant (census of 1880). In 1889 the total ordi- 
nary expenditure of New York was $48,937,694 (being $32.30 
for each inhabitant) ; that of Boston, $16,117,043 (being $35.94 
for each inhabitant). 1 

There is no denying that the government of cities is the one 
conspicuous failure of the United States. The deficiencies of 
the National government tell but little for evil on the welfare 
of the people. The faults of the State governments are insig- 
nificant compared with the extravagance, corruption, and mis- 
management which mark the administrations of most of the 
great cities. For these evils are not confined to one or two 
cities. The commonest mistake of Europeans who talk about 
America is to assume that the political vices of New York are 
found everywhere. The next most common is to suppose that 
they are found nowhere else. In New York they have re- 
vealed themselves on the largest scale. They are " gross as 
a mountain, open, palpable." But there is not a city with a 
population exceeding 200,000 where the poison germs have not 
sprung into a vigorous life ; and in some of the smaller ones, 
down to 70,000, it needs no microscope to note the results 
of their growth. Even in cities of the third rank similar 
phenomena may occasionally be discerned, though there, as 

sewers in streets is of course not included in this vast aggregate of moneys 
annually levied and debt rolled up, because the cost of those improvements is 
levied directly upon the land by way of assessments, and they never figure as 
part of the ordinary expenditure of the city." 

In New York the total net funded debt was in Dec. 1891, 897,857,230. 

1 These totals of 1890 (census returns) include all the ordinary expendi- 
tures, but not sums paid for investment securities or redemption of municipal 
debt. 



638 THE STATE GOVERNMENTS part ii 

some one has said, the jet black of New York or San Fran- 
cisco dies away into a harmless gray. 

For evils which appear wherever a large population is densely 
aggregated, there must be some general and widespread causes. 
What are these causes ? Adequately to explain them would 
be to anticipate the account of the party system to be given 
in the latter part of this volume, for it is that party system 
which has, not perhaps created, but certainly enormously 
aggravated them, and impressed on them their specific type. 1 
I must therefore restrict myself for the present to a brief 
enumeration of the chief sources of the malady, and the chief 
remedies that have been suggested for or applied to it. No 
political subject has been so copiously discussed of late years 
in America by able and experienced publicists, nor can I do 
better than present the salient facts in the words which some of 
these men, speaking in a responsible position, have employed. 

The New York commissioners of 1876 appointed "to devise 
a plan for the government of cities in the State of New York," 
sum up the mischief as follows : 2 — 

"1. The accumulation of permanent municipal debt : In New York it 
was, in 1840, $10,000,000 ; in 1850, $12,000,000 ; in 1860, §18,000,000 ; in 
1870, §73,000,000 ; in 1870, §113,000,000. 3 

1 See Part III., and especially Chapters LXII. aud LXIII. See also the 
chapters in Vol. II. on the Tweed Ring in New York City, and the Gas Ring in 
Philadelphia. The full account given in those chapters of the phenomena of 
municipal misgovernment in the two largest cities in the United States seems 
to dispense me from the duty of here describing those phenomena in general. 

2 The commission, of which Mr. W. M. Evarts (afterwards senator from 
New York) was chairman, included some of the ablest men in the State, and 
its report, presented 6th March 1877, may be said to have become classical. 
Most of it is as applicable now to great cities as it was in 1876. 

3 The New York commissioners say: " The magnitude and rapid increase of 
this debt are not less remarkable than the poverty of the results exhibited as 
the return for so prodigious an expenditure. It was abundantly sufficient for 
the construction of all the public works of a great metropolis for a century to 
come, and to have adorned it besides witli the splendours of architecture and 
art. Instead of this, the wharves and piers are for the most part temporary 
and perishable structures ; the streets are poorly paved ; the sewers in great 
measure imperfect, insufficient, and in bad order ; the public buildings shabby 
and inadequate ; and there is little which the citizen can regard with satisfac- 
tion, save the aqueduct aud its appurtenances and the public park. Even these 
should not be said to be the product of the public debt ; for the expense occa- 
sioned by them is, or should have been, for the most part already extinguished. 
In truth, the larger part of the city debt represents avast aggregate of moneys 
wasted, embezzled, or misapplied." 



chap, li THE WORKING OE CITY GOVERNMENTS 639 

"2. The excessive increase of the annual expenditure for ordinary 
purposes : In 1816 the amount raised by taxation was less than i per 
cent on the taxable property ; in 1850, 1.13 per cent ; in 1860, 1.69 per 
cent ; in 1870, 2.17 per cent ; in 1876, 2.67 per cent. . . . The increase 
in the annual expenditure since 1850, as compared with the increase of 
population, is more than 400 per cent, and as compared with the increase 
of taxable property, more than 200 per cent. ' ' 

They suggest the following as the causes : — 

1. Incompetent and unfaithful governing boards and officers. 

" A large number of important offices have come to be filled by men 
possessing little, if any, fitness for the important duties they are called 
upon to discharge. . . . These unworthy holders of public trusts gain 
their places by their own exertions. The voluntary suffrage of their 
fellow-citizens would never have lifted them into office. Animated by 
the expectation of unlawful emoluments, they expend large sums to 
secure their places, and make promises beforehand to supporters and 
retainers to furnish patronage or place. The corrupt promises must be 
redeemed. Anticipated gains must be realized. Hence old and educated 
subordinates must be dismissed and new places created to satisfy the 
crowd of friends and retainers. Profitable contracts must be awarded, 
and needless public works undertaken. The amounts required to satisfy 
these illegitimate objects enter into the estimates on which taxation is 
eventually based, in fact they constitute in many instances a superior 
lien upon the moneys appropriated for government, and not until they 
are in some manner satisfied do the real wants of the public receive atten- 
tion. It is speedily found that these unlawful demands, together with 
the necessities of the public, call for a sum which, if taken at once by 
taxation, would produce dissatisfaction and alarm in the community, 
and bring public indignation upon the authors of such burdens. Eor the 
purpose of averting such consequences divers pretences are put forward 
suggesting the propriety of raising means for alleged exceptional purposes 
by loans of money, and in the end the taxes are reduced to a figure not 
calculated to arouse the public to action, and any failure thus to raise a 
sufficient sum is supplied by an issue of bonds. . . . Yet this picture 
fails altogether to convey an adequate notion of the elaborate systems of 
depredation which, under the name of city governments, have from time 
to time afflicted our principal cities ; and it is moreover a just indication 
of tendencies in operation in all our cities, and which are certain, unless 
arrested, to gather increased force. It would clearly be within bounds 
to say that more than one-half of all the present city debts are the direct 
results of the species of intentional and corrupt misrule above de- 
scribed." 

2. The introduction of State and national politics into 
municipal affairs. 



640 THE STATE GOVERNMENTS part ii 

" The formation of general political parties upon differences as to 
general principles or methods of State policy is useful, or at all events 
inevitable. But it is rare indeed that any such questions, or indeed any 
upon which good men ought to differ, arise in connection witb the con- 
duct of municipal affairs. Good men cannot and do ,nou culier as to 
whether municipal debt ought to be restricted, extravagance checked, 
and municipal affairs lodged in the hands of competent and faithful 
officers. There is no more reason why the control of the public works 
of a great city should be lodged in the hands of a Democrat or a Repub- 
lican than there is why an adherent of one or the other of the great 
parties should be made the superintendent of a business corporation. 
Good citizens interested in honest municipal government can secure that 
object only by acting together. Political divisions separate them at the 
start, and render it impossible to secure the object desired equally by 
both. . . . This obstacle to the union of good citizens paralyzes all 
ordinary efforts for good municipal government. . . . The great prizes 
in the shape of place and power which are offered on the broad fields of 
national and State politics offer the strongest incentives to ambition. 
Personal advancement is in these fields naturally associated with the 
achievement of great public objects, and neither end can be secured 
except through the success of a political party to which they are at- 
tached. The strife thus engendered develops into a general battle in 
which each side feels that it cannot allow any odds to the other. If one 
seeks to turn to its advantage the patronage of municipal office, the other 
must carry the contest into the same sphere. It is certain that the temp- 
tation will be withstood by neither. It then becomes the direct interest 
of the foremost men of the nation to constantly keep their forces in 
hostile array, and these must be led by, among other ways, the pat- 
ronage to be secured by the control of local affairs. . . . Next to this 
small number of leading men there is a large class who, though not dis- 
honest or devoid of public spirit, are led by habit and temperament to 
take a wholly partisan view of city affairs. Their enjoyment of party 
struggles, their devotion to those who share with them the triumphs and 
defeats of the political game, are so intense that they gradually lose 
sight of the object for which parties exist or ought to exist, and consider- 
able proportions of them in their devotion to politics suffer themselves to 
be driven from the walks of regular industry, and at last become depend- 
ent for their livelihood on the patronage in the hands of their chiefs. 
Mingled with them is nearly as large a number to whom politics is sim- 
ply a mode of making a livelihood or a fortune, and who take part in 
political contests without enthusiasm, and often without the pretence of 
an interest in the public welfare, and devote themselves openly to the 
organization of the vicious elements of society in combinations strong- 
enough to hold the balance in a closely-contested election, overcome the 
political leaders, and secure a fair share of the municipal patronage, or 
else extort immunity from the officers of the law. . . . The rest of the 
community, embracing the large majority of the more thrifty classes, 
averse to engaging in what they deem the ' low business ' of politics, or 



chap, li THE WORKING OF CITY GOVERNMENTS 641 

hopeless of accomplishing any substantial good in the face of such pow- 
erful opposing interests, for the most part content themselves with act- 
ing in accordance with their respective parties. ... It is through the 
agency of the great political parties, organized and operating as above 
describe^, t-hpt our municipal officers are and have long been selected. 
It can scarcely be matter of wonder then that the present condition of 
municipal affairs should present an aspect so desperate." 

3. The assumption by the State legislature of the direct 
control of local affairs. 

"This legislative intervention has necessarily involved a disregard of 
one of the most fundamental principles of republican government (the 
self-government of municipalites). . . . The representatives elected 
to the central (State) legislature have not the requisite time to direct the 
local affairs of the municipalities. . . . They have not the requisite 
knowledge of details. . . . When a local bill is under consideration 
in the legislature, its care and explanation are left exclusively to the 
representatives of the locality to which it is applicable ; and sometimes 
by express, more often by a tacit understanding, local bills are ' log- 
rolled' through the houses. Thus legislative duty is delegated to the 
local representatives, who, acting frequently in combination with the 
sinister elements of their constituency, shift the responsibility for wrong- 
doing from themselves to the legislature. But what is even more impor- 
tant, the general representatives have not that sense of personal interest 
and personal responsibility to their constituents which are indispensable 
to the intelligent administration of local affairs. And yet the judgment 
of the local governing bodies in various parts of the State, and the wishes 
of their constituents, are* liable to be overruled by the votes of legisla- 
tors living at a distance of a hundred miles. ... To appreciate the 
extent of the mischief done by the occupation of the central legislative 
body with the consideration of a multitude of special measures relating to 
local affairs, some good, probably the larger part bad, one has only to 
take up the session laws of any year at random and notice the subjects 
to which they relate. Of the 808 acts passed in 1870, for instance, 212 
are acts relating to cities and villages, 94 of which relate to cities, and 36 
to the city of New York alone. A still larger number have reference to 
the city of Brooklyn. These 212 acts occupy more than three-fourths of 
the 2000 pages of the laws of that year. . . . The multiplicity of laws 
relating to the same subjects thus brought into existence is itself an evil 
of great magnitude. What the law is concerning some of the most im- 
portant interests of our principal cities can be ascertained only by the 
exercise of the patient research of professional lawyers. In many in- 
stances even professional skill is baffled. Says Chief-Justice Church: 
' It is scarcely safe for any one to speak confidently on the exact con- 
dition of the law in respect to public improvements in the cities of New 
York and Brooklyn. The enactments referring thereto have been modi- 
fied, superseded, and repealed so often and to such an extent that it is 
VOL. I 2 T 



642 THE STATE GOVERNMENTS part ii 

difficult to ascertain just what statutes are in force at any particular time. 
The uncertainties arising from such multiplied and conflicting legislation 
lead to incessant litigation with its expensive burdens, public and private.' 
. . . But this is not all nor the worst. It may be true that the first 
attempts to secure legislative intervention in the local affairs of our prin- 
cipal cities were made by good citizens in the supposed interest of reform 
and good government, and to counteract the schemes of corrupt officials. 
The notion that legislative control was the proper remedy was a serious 
mistake. The corrupt cliques and rings thus sought to be baffled were 
quick to perceive that in the business of procuring special laws concern- 
ing local affairs they could easily outmatch the fitful and clumsy labours 
of disinterested citizens. The transfer of the control of the municipal 
resources from the localities to the (State) capitol had no other effect than 
to cause a like transfer of the methods and arts of corruption, and to 
make the fortunes of our principal cities the traffic of the lobbies. Munici- 
pal corruption, previously confined within territorial limits, thenceforth 
escaped all bounds and spread to every quarter of the State. Cities were 
compelled by legislation to buy lands for parks and places because the 
owners wished to sell them ; compelled to grade, pave, and sewer streets 
without inhabitants, and for no other purpose than to award corrupt con- 
tracts for the work. Cities were compelled to purchase, at the public 
expense, and at extravagant prices, the property necessary for streets 
and avenues, useless for any other purpose than to make a market for the 
adjoining property thus improved. Laws were enacted abolishing one 
office and creating another with the same duties in order to transfer official 
emoluments from one man to another, and laws to change the functions 
of officers with a view only to a new distribution of patronage, and to 
lengthen the terms of offices for no other purpose than to retain in place 
officers who could not otherwise be elected or appointed." 

This last-mentioned cause of evil is no doubt a departure 
from the principle of local popular control and responsibility 
on which State governments and rural local governments have 
been based. It is a dereliction which has brought its punish- 
ment with it. But the resulting mischiefs have been immensely 
aggravated by the vices of the legislatures in a few of the 
States, such as New York and Pennsylvania. As regards 
the two former causes, they are largely due to what is called 
the Spoils system, whereby office becomes the reward of party 
service, and the whole machinery of party government made to 
serve, as its main object, the getting and keeping of places. 
Now the Spoils system, with the party machinery which it 
keeps oiled and greased and always working at high pressure, 
is far more potent and pernicious in great cities than in coun- 
try districts. For in great cities we find an ignorant multi- 



chap, li THE WORKING OF CITY GOVERNMENTS 643 



tude, largely composed of recent immigrants, untrained in self- 
government ; we find a great proportion of the voters paying 
no direct taxes, and therefore feeling no interest in moderate 
taxation and economical administration ; we find able citizens 
absorbed in their private businesses, cultivated citizens un- 
usually sensitive to the vulgarities of practical politics, and 
both sets therefore specially unwilling to sacrifice their time 
and tastes and comfort in the struggle with sordid wire-pull- 
ers and noisy demagogues. In great cities the forces that 
attack and pervert democratic government are exceptionally 
numerous, the defensive forces that protect it exceptionally 
ill-placed for resistance. Satan has turned his heaviest bat- 
teries on the weakest part of the ramparts. 

Besides these three causes on which the commissioners dwell, 
and the effects of which are felt in the great cities of other 
States as well as of New York, though perhaps to a less 
degree, there are what may be called mechanical defects in the 
structure of municipal governments, whose nature may be 
gathered from the account given in last chapter. There is a 
want of methods for fixing public responsibility on the govern- 
ing persons and bodies. If the mayor jobs his patronage he 
can throw large part of the blame on the aldermen or other 
confirming council, alleging that he would have selected better 
men could he have hoped that the aldermen would approve his 
selection. If he has failed to keep the departments up to their 
work, he may argue that the city legislature hampered him and 
would not pass the requisite ordinances. Each house of a two- 
chambered legislature can excuse itself by pointing to the 
action of the other, or of its own committees, and among the 
numerous members of the chambers — or even of one cham- 
ber if there be but one — responsibility is so divided as to 
cease to come forcibly home to any one. The various boards 
and officials have generally had little intercommunication; 1 
and the fact that some were directly elected by the people 
made these feel themselves independent both of the mayor and 
the city legislature. The mere multiplication of elective posts 

1 In Philadelphia some one has observed that there were four distinct and 
independent authorities with power to tear up the streets, and that there was 
no authority upon whom the duty was specifically laid to put them in repair 
again. 



644 THE STATE GOVERNMENTS fart ii 

distracts trie attention of the people, and deprives the voting 
at the polls of its efficiency as a means of reproof or commenda- 
tion. 1 

To trace municipal mis g-overnment to its sources was com- 
paratively easy. To show how these sources might be dried 
up was more difficult, though as to some obvious remedies all 
reformers were agreed. What seemed all but impracticable 
was to induce the men who had produced these evils, who used 
them and profited by them, who were so accustomed to them 
that even the honester sort did not feel their turpitude, to 
consent to the measures needed for extinguishing their own 
abused power and illicit gains. It was from the gangs of city 
politicians and their allies in the State legislatures that reforms 
had to be sought, and the enactment of their own abolition 
obtained. In vain would the net be spread in the sight of 
such birds. 

The remedies proposed by the New York commission were 
the following : — 

(a) A restriction of the power of the State legislature to 
interfere by special legislation with municipal governments or 
the conduct of municipal affairs. 2 

(b) The holding of municipal elections at a different period 
of the year from State and National elections. This has been 
again taken up and pressed within the last year or two (1892) 
and seems to have a chance of being carried. 

(c) The vesting of the legislative powers of municipalities 
in two bodies : — A board of aldermen, elected b} r the ordinary 
(manhood) suffrage, to be the common council of each city. A 
board of finance of from six to fifteen members, elected by 
voters who had for two years paid an annual tax on property 
assessed at not less than $500 (£100), or a rent (for premises 

1 Mr. Seth Low remarks : — " Greatly to multiply important elective officers 
is not to increase popular control, but to lessen it. The expression of the 
popular will at the ballot-box is like a great blow struck by an engine of 
enormous force. It can deliver a blow competent to overthrow any officer, 
however powerful. But, as in mechanics, great power has to he subdivided in 
order to do fine work, so in giving expression to the popular will the necessity 
of choosing amid a multitude of unimportant officers involves inevitably a loss 
of power to the people." — Address on Municipal Government, February 1885. 

2 The constitutions of many States now prescribe that cities shall be incor- 
porated by general laws. This prohibition of special legislation has generally 
worked well, though it is sometimes evaded. See pp. 537 and boo, ante. 



chap, li THE WORKING OE CITY GOVERNMENTS 645 

occupied) of not less than $250. 1 This board of finance was to 
have a practically exclusive control of the taxation and expen- 
diture of each city, and of the exercise of its borrowing powers, 
and was in some matters to act only by a two-thirds majority. 

(d) Limitations on the borrowing powers of the municipal- 
ity, the concurrence of the mayor and two-thirds of the State 
legislature, as well as of two-thirds of the board of finance 
being required for any loan except in anticipation of current 
revenue. 

(e) An extension of the general control and appointing 
power of the mayor, the mayor being himself subject to 
removal for cause by the governor of the State. 

To introduce all of these reforms it became necessary to 
amend the constitution of the State of New York; and the 
commission drafted a series of amendments accordingly. 
These went before the State legislature. But the birds saw 
the net, and naturally omitted to submit the amendments to 
the people. The report, in fact, fell to the ground. But in 
the recent legislative charters of several cities, and notably of 
Brooklyn (as to which see next chapter), some of the commis- 
sioners' suggestions have been adopted, and with excellent 
results. The most novel of them, however, and the one which 
excited most hostile criticism, that of creating a council elected 
by voters having a tax-paying (or rent-paying) qualification, 
has never been tried in any great city. It is deemed undemo- 
cratic ; practical men say there is no use submitting it to a 
popular vote. 2 Nevertheless, there are still some who advocate 

1 This was to apply to cities with a population exceeding 100,000. In smaller 
cities the rent was to he $100 at least, and no minimum for the assessed value 
of the taxed property was to be fixed. 

2 Though, as the commission pointed out (Report, p. 33) , the principle that 
no one should vote upon any proposition to raise a tax or appropriate its pro- 
ceeds unless himself liable to be assessed for such tax, was one generally 
applied in the village charters of the State of New York, and even in the 
charters of some of the smaller cities. The report repels the charge that this 
proposal is inconsistent with the general recognition of the value of universal 
suffrage by saying, " No surer method could be devised to bring the principle 
of universal suffrage into discredit and prepare the way for its overthrow than 
to pervert it to a use for which it was never intended, and subject it to a ser- 
vice which it is incapable of performing. . . . To expect frugality and economy 
in financial concerns from its operation in great cities, where perhaps half of 
the inhabitants feel no interest in these objects, is to subject the principle to a 
strain which it cannot bear. All the friends of the system should unite in res- 
cuing it from such perils." — Page 40. 



646 THE STATE GOVERNMENTS part n 

it, appealing to the example of Australia, where it is said to 
have worked well. 

Among the other reforms in city government which I find 
canvassed in America are the following : — 

(a) Civil service reform, i.e. the establishment of examina- 
tions as a test for admission to posts under the city, and the 
bestowal of these posts for a fixed term of years, or generally 
during good behaviour, instead of leaving the civil servant at 
the mercy of a partisan chief, who may displace him to make 
room for a party adherent or personal friend. 

(6) The lengthening of the terms of service of the mayor 
and the heads of departments, so as to give them a more 
assured position and diminish the frequency of elections. — 
This has been done to some extent in recent charters — witness 
St. Louis (see last preceding chapter) and Philadelphia. 

(c) The vesting of almost autocratic executive power in the 
mayor and restriction of the city legislature to purely legisla- 
tive work and the voting of supplies. — This also finds place 
in recent charters, notably in that of Brooklyn, and has worked, 
on the whole, well. It is, of course, a remedy of the " cure or 
kill " order. If the people are thoroughly roused to choose an 
able and honest man, the more power he has the better ; it is 
safer in his hands than in those of city councils. If the voters 
are apathetic and let a bad man slip in, all may be lost till the 
next election. I do not say " all is lost," for there have been 
remarkable instances of men who have been sobered and ele- 
vated by power and responsibility. The Greek proverb " office 
will show the man " was generally taken in an unfavourable 
sense. The proverb of the steadier headed Germans, " office 
gives understanding" (Amt gibt Verstancl), represents a more 
hopeful view of human nature, and one not seldom justified in 
American experience. 

(d) The election of a city legislature, or one branch of it, or 
of a school committee, on a general ticket instead of by wards. 
— When aldermen or councilmen are chosen by the voters of a 
small local area, it is assumed, in the United States, that they 
must be residents within it ; thus the field of choice among 
good citizens generally is limited. It follows also that their 
first duty is deemed to be to get the most they can for their 
own ward ; they care little for the general interests of the city, 



chap, li THE WORKING OF CITY GOVERNMENTS 647 

and carry on a game of barter in contracts and public improve- 
ments with the representatives of other wards. Hence the 
general ticket system is preferable. 

(e) The limitation of taxing powers and borrowing powers 
by reference to the assessed value of the taxable property 
within the city. — Eestrictions of this nature have been largely 
applied to cities as well as to counties and other local author- 
ities. The results have been usually good, yet not uniformly 
so, for evasions may be practised. The New York commis- 
sion say : " The apparent prohibition, both as to taxation and 
the percentage of debt, could be readily evaded by raising the 
assessment. Such restrictions do not attempt to prevent the 
wastefulness or embezzlement of the public funds otherwise 
than by limiting the amount of the funds subject to depreda- 
tion. The effect of such measures would simply be to leave 
the public necessities without adequate provision." T And 
Messrs. Allinson and Penrose observe — 

" By the Constitution of 1874 it is provided that the debt of a county, 
city, borough, township, or school district shall never exceed 7 per cent 
on the assessed value of the taxable property therein. This provision was 
intended to prevent the encumbering of the property of any citizen for 
public purposes to a greater extent than 7 per cent. In its workings it 
has been an absolute failure. In every city of the State, except Philadel- 
phia, the city is part of the county government. The county has power 
to borrow to the extent of 7 per cent : so has the city : so has the general 
school district: so has the ward school district — making 28 per cent in 
all, which can be lawfully imposed, and has been authorized by the Act 
of 1874. But there is still another cause of failure to which Philadelphia 
is more peculiarly liable. In order to evade the provision of the Consti- 
tution limiting the power to contract debts to 7 per cent, the assessed value 
of property in nearly every city of the State was largely increased — in 
some instances, incredible as it may seem, to the extent of 1000 per cent. 
It is therefore clear that no sufficient protection against an undue increase 
of municipal debt can be found in constitutional and legislative provisions 
of this kind." — Philadelphia, a History of Municipal Development (1887), 
p. 276. 

Nevertheless, such restrictions are now often found embodied 
in State constitutions, and have usually, so far as I could ascer- 
tain, diminished the evil they are aimed at. 2 

1 Another disadvantage is that such restriction may sometimes compel a 
public improvement to be executed piecemeal which could be executed more 
cheaply if done all at once. See Chapter XLIII. 

2 See note in Appendix at the end of this volume. 



648 THE STATE GOVERNMENTS part ii 

I must not attempt to discuss the interesting question of the 
results of entrusting to city governments the supply of water, 
gas, and electricity, perhaps also street railways, because Amer- 
ican cities are accumulating such a mass of experience on the 
subject that it could not be dealt with save at considerable 
length, while the wise still differ as to the general conclusions 
to be formed. 1 The objections to placing this function in the 
hands of such men as rule most municipalities are obvious. 
One group of these objections will be found illustrated in a 
later chapter, describing the Gas Ring in Philadelphia. There 
are, however, some reformers sanguine enough to believe that 
when city councils obtain functions whose exercise has a strong 
and obvious interest for the citizens, the latter are roused to a 
more active and watchful control, and may be counted on to 
eject corrupt politicians from power. Nor must we forget 
that the plan of leaving the function to private corporate com- 
panies is open to evils scarcely less patent than those which 
flow from dishonest management, because these companies 
when they prosper and grow large bring their wealth to bear 
upon the municipal authorities, and have even been known to 
scatter bribes widely among the voters for the sake of retain- 
ing or extending their monopoly. It is not the least among 
the many mischiefs entailed by the pollution of city govern- 
ments that citizens who resent the high prices charged and 
poor supply given by private companies often prefer to bear 
these hardships and to wink at the impure methods which 
some companies employ rather than face the risk of throwing 
to the Rings that control the larger municipalities the addi- 
tional mass of patronage and additional material for jobbery 
which the business of water and gas supply carries with it. 

The question of city government is that which chiefly occu- 
pies practical publicists, because it is admittedly the weakest 
point of the country. That adaptability of the institutions to 
the people and their conditions, which judicious strangers have 
been wont to admire in the United States, and that consequent 
satisfaction of the people with their institutions, which con- 
trasts so agreeably with the discontent of European nations, 
is wholly absent as regards municipal administration. Wher- 

1 Of about 160 cities with a population exceeding 20.000, -water supply is in 
59 left to private corporations, and in 101 belongs to the municipality. 



chap, li THE WORKING OF CITY GOVERNMENTS 649 

ever there is a large city there are loud complaints, and Ameri- 
cans who deem themselves in other respects a model for the 
Old World are in this respect anxious to study Old World 
models, those particularly which the cities of Great Britain 
present. The best proof of dissatisfaction is to be found in the 
frequent changes of system and method. What Dante said of 
his own city may be said of the cities of America : they are like 
the sick man who finds no rest upon his bed, but seeks to ease 
his pain by turning from side to side. Every now and then 
the patient finds some relief in a drastic remedy, such as the 
enactment of a new charter and the expulsion at an election of 
a gang of knaves. Presently, however, the weak points of the 
charter are discovered, the State legislature again begins to 
interfere by special acts ; civic zeal grows cold and allows bad 
men to creep back into the chief posts ; Federal issues are 
allowed to supersede at municipal elections that which ought 
to be always deemed the real issue, the character and capacity 
of the candidates for office. All this is discouraging. Yet no 
one who studies the municipal history of the last decades will 
doubt that things are better than they were twenty-five years 
ago. The newer frames of government are an improvement 
upon the older. Rogues are less audacious. Good citizens are 
more active. Party spirit is still permitted to dominate and 
pervert municipal politics, yet the mischief it does is more 
clearly discerned and the number of those who resist it daily 
increases. In the increase of that number and the growth of 
a stronger sense of civic duty rather than in any changes of 
mechanism, lies the ultimate hope for the reform of city gov- 
ernments. 



CHAPTER LII 



AN AMERICAN VIEW OF MUNICIPAL GOVERNMENT IN THE 



UNITED STATES 



By the Hon. Seth Low, President of Columbia College, New York, and 
formerly Mayor of the City of Brooklyn 

A city in the United States is quite a different thing from 
a city in its technical sense, as the word is used in England. 
In England a city is usually taken to be a place which is or 
has been the seat of a bishop. 2 The head of a city govern- 
ment in England is a mayor, but many boroughs which are not 
cities are also governed by a mayor. In the United States a 
city is a place which has received a charter as a city from the 
legislature of its State. In America there is nothing whatever 
corresponding to the English borough. Whenever in the 
United States one enters a place that is presided over by a 
mayor, he may generally understand that he is in a city ; save 
that here and there incorporated villages have mayors. 

Any European student of politics who wishes to understand 
the problem of government in the United States, whether of 
city government or any other form of it, must first of all 
transfer himself, if he can, to a point of view precisely the 
opposite of that which is natural to him. This is scarcely, if 
at all, less true of the English than of the continental student. 
In England as upon the continent, from time immemorial, 
government has descended from the top down. Until recently, 
society in Europe has accepted the idea, almost without pro- 
test, that there must be governing classes, and that the great 

1 This chapter is copyright, by Seth Low, 1SSS. 

2 In Scotland, where there have been, sinee the Revolution, no bishops, 
Edinburgh, Glasgow, Aberdeen, and now (1889) Dundee are described as cities. 
In England Westminster is called a city. It had, however, for a short time, a 
bishop. 



chap, lii MUNICIPAL GOVERNMENT 651 

majority of men must be governed. The French Revolution 
doubtless modified this idea everywhere, and especially in 
France, but even in France public sentiment on this point is a 
resultant of a conflict of views. In the United States, how- 
ever, that idea does not obtain at all, and, what is of scarcely 
less importance, it never has obtained. No distinction is 
recognized of governing and governed classes, and the problem 
of government is, in effect, an effort on the part of society as 
a whole to learn and apply to itself the art of government. 
Bearing this in mind, it becomes apparent that the immense 
tide of immigration into the United States is a continually 
disturbing factor. The immigrants come from many countries, 
a very large proportion of them being of the classes which, in 
their old homes, from time out of mind, have been governed. 
Arriving in America, they shortly become citizens in a society 
which undertakes to govern itself. However well-disposed 
they may be as a rule, they have not had experience in self- 
government, nor do they always share the ideas which have 
expressed themselves in the Constitution of the United States. 
This foreign element settles largely in the cities of the coun- 
try. It is estimated that the population of New York City 
contains eighty per cent of people who either are foreign-born, 
or who are the children of foreign-born parents. Consequently, 
in a city like New York, the problem of learning and applying 
the art of government is handed over to a population that 
begins in point of experience very low down. In many of 
the cities of the United States, indeed in almost all of them, 
the population not only is thus largely untrained in the art of 
self-government, but it is not even homogeneous. So that an 
American city is confronted not only with the necessity of in- 
structing large and rapidly-growing bodies of people in the art 
of government, but it is compelled at the same time to assimi- 
late strangely different component parts into an American 
community. It will be apparent to the student that either 
one of these functions by itself would be difficult enough. 
When both are found side by side the problem is increasingly 
difficult as to each. Together they represent a problem such 
as confronts no city in the United Kingdom, or in Europe. 

The American city has had problems to deal with also of a 
material character, quite different from those which have con- 



652 THE STATE GOVERNMENTS part ii 

fronted the cities of the Old World. With the exception of 
Boston, Philadelphia, Baltimore, New Orleans, and New York, 
there is no American city of great consequence whose roots go 
back into the distant past even of America. American cities 
as a rule have grown with a rapidity to which the Old World 
presents few parallels. London, in the extent of its growth, 
but not in the proportions of it, Berlin since 1870, and Rome 
in the last few years, are perhaps the only places in Europe 
which have been compelled to deal with this element of rapid 
growth in anything like a corresponding degree. All of these 
cities, London, Berlin, and Rome, are the seats of the national 
government, and receive from that source more or less help and 
guidance in their development. In all of them an immense 
nucleus of wealth existed before this great and rapid growth 
began. The problem in America has been to make a great 
city in a few years out of nothing. There has been no nucleus 
of wealth upon which to found the structure which every suc- 
ceeding year has enlarged. Recourse has been had of neces- 
sity, under these conditions, to the freest use of the public 
credit. The city of Brooklyn and the city of Chicago, each 
with a population now (1892) of about a million of people, 1 
are but little more than fifty years old. In that period every- 
thing has been created out of the fields. The houses in which 
the people live, the water-works, the paved streets, the sewers, 
everything which makes up the permanent plant of a city, all 
have been produced while the city has been growing from year 
to year at a fabulous rate. Besides these things are to be 
reckoned the public schools, the public parks, and in the case 
of Brooklyn, the great bridge connecting it with New York, 
two-thirds of the cost of which is borne by Brooklyn. Looked 
at in this light the marvel would seem to be, not so much that 
the American cities are justly criticizable for many defects, but 
rather that results so great have been achieved in so short a 
time. The necessity of doing so much so quickly, has worked 
to the disadvantage of the American city in two ways. First, 
it has compelled very lavish expenditure under great pressure 
for quick results. This is precisely the condition under which 
the best trained business men make their greatest mistakes, 
and are in danger of running into extravagance and wasteful- 
i Chicago has more than 1,000,000, and Brooklyn over 900,000. 



chap, lii MUNICIPAL GOVERNMENT 653 



ness. No candid American will deny that American cities 
have suffered largely in this way, not alone from extravagance 
and wastefulness, but also from dishonesty ; but in estimating 
the extent of the reproach, it is proper to take into considera- 
tion these general conditions under which the cities have been 
compelled to work. The second disadvantage which American 
cities have laboured under from this state of things has been 
their inability to provide adequately for their current needs, 
while discounting the future so freely in order to provide their 
permanent plant. When the great American cities have paid 
for the permanent plant which they have been accumulating 
during the last half century, so that the duty which lies before 
them is chiefly that of caring adequately for the current life of 
their population, a vast improvement in all these particulars 
may reasonably be expected. In other words, time is a neces- 
sary element in making a great city, as it is in every other 
great and enduring work. American cities are judged by their 
size rather than by the time which has entered into their 
growth. It cannot be denied that larger results could have 
been produced with the money expended if it always had 
been used with complete honesty and good judgment. But to 
make an intelligent criticism upon the American city, in its 
failures upon the material side, these elements of difficulty 
must be taken into consideration. 

Another particular in which the American city may be 
thought to have come short of what might have been hoped 
for, may be described in general terms as a lack of foresight. 
It would have been comparatively easy to have preserved in 
all of them small open parks, and generally to have made them 
more beautiful, if there had been a greater appreciation of the 
need for these things and of the growth the cities were to 
attain to. The western cities probably have erred in this 
regard less than those upon the Atlantic coast. But while it 
is greatly to be regretted that this large foresight has not 
been displayed, it is after all only repeating in America what 
has taken place in Europe. The improvement of cities seems 
everywhere to be made by tearing down and replacing at great 
cost, rather than by a far-sighted provision for the demands 
and opportunities of the future. These unfortunate results 
m America have flowed largely from two causes : first, from 



654 THE STATE GOVERNMENTS part ii 

inability on the part of the cities to appreciate in advance the 
phenomenal growth that has come upon them ; and second, 
from the frequent tendency of population to grow in precisely 
the direction where it was not expected to. A singular illus- 
tration of this last factor is to be found in the city of Wash- 
ington. The Capitol was made to face towards the east, under 
the impression that population would settle in that direction. 
As matter of fact the city has grown towards the west, so that 
the Capitol stands with it's back to the city and faces a district 
that is scarcely built upon at all. 

Probably no detail strikes the eye of the foreigner more un- 
favourably in connection with the average American city than 
the poor paving of the streets and their lack of cleanliness. 
The comparison with cities of Europe in these respects is 
immensely to the disadvantage of the American city. But, in 
this connection, it is not unfair to call attention to the fact 
that the era of good paving and clean streets in Europe is 
scarcely more than thirty years old. Poor as is the condition 
of the streets in most American cities now, it would be risking 
very little to say that it would average much higher than ten 
years ago. There are several contributing causes which are 
reflected in this situation that represent difficulties from which 
most European cities are free. In the first place, frost strikes 
much deeper in America, and is more trying to the pavements 
in every way. In the next place, the streets are more often 
disturbed in connection with gas pipes, steam pipes, and 
telegraph service, than in European cities. But, apart from 
these incidental difficulties, the fundamental trouble in con- 
nection with the streets of American cities is the lack of 
sufficient appropriations to put them in first-class condition 
and to keep them so, both as to paving and as to cleaning. 
The reason for this has been pointed out. 

All the troubles, however, which have marked the develop- 
ment of cities in the United States are not due to these causes. 
Cities in the United States, as forms of government, are of 
comparatively recent origin. The city of Boston, for example, 
in the State of Massachusetts, although the settlement was 
founded more than two hundred and fifty years ago, received 
its charter as a city so recently as 1822. The city of Brooklyn 
received its charter from the State of New York in 1835. In 



chap, lii MUNICIPAL GOVERNMENT 655 

other words, the transition from village and town government 
into government by cities, has simply followed the transition 
of small places into large communities. This suggests another 
distinction between the cities of the United States and those 
of Great Britain. The great cities of England and of Europe, 
with few exceptions, have their roots in the distant past. 
Many of their privileges and chartered rights were wrested 
from the Crown in feudal times. Some of these privileges 
have been retained, and contribute to the income, the pride, 
and the influence of the municipality. The charter of an 
American city represents no element of prestige or inspiration. 
It is only the legal instrument which gives the community au- 
thority to act as a corporation, and which defines the duties of 
its officers. The motive for passing from town government to 
city government in general has been the same everywhere — 
to acquire a certain readiness of action, and to make more 
available the credit of the community in order to provide ade- 
quately for its own growth. The town meeting, in which 
every citizen takes part, serves its purpose admirably in com- 
munities up to a certain size, or for the conducting of public 
work on not too large a scale. But the necessity for efficiency 
in providing for the needs of growth has compelled rapidly- 
growing communities, in all the States, to seek the powers 
of a corporation as administered through a city government. 
Growing thus out of the town, it happened very naturally that 
the first conception of the city on the part of Americans was 
that which had applied to the town and the village as local subdi- 
visions of the commonwealth. Charters were framed as though 
cities were little states. Americans are only now learning, 
after many years of bitter experience, that they are not so 
much little states as large corporations. Many of the mistakes 
which have marked the progress of American cities up to this 
point have sprung from that defective conception. The aim 
deliberately was, to make a city government where no officer 
by himself should have power enough to do much harm. The 
natural result of this was to create a situation where no officer 
had power to do much good. Meanwhile bad men united for 
corrupt purposes, and the whole organization of the city gov- 
ernment aided such in throwing responsibility from one to 
another. Many recent city charters in the United States pro- 



656 THE STATE GOVERNMENTS part ii 

ceed upon the more accurate theory that cities, in their organic 
capacity, are chiefly large corporations. The better results 
flowing from this theory are easily made clear. Americans 
are sufficiently adept in the administration of large business 
enterprises to understand that, in any such undertaking, some 
one man must be given the power of direction and the choice 
of his chief assistants ; they understand that power and 
responsibility must go together from the top to the bottom of 
every successful business organization. Consequently, when 
it began to be realized that a city was a business corporation 
rather than an integral part of the State, the unwillingness to 
organize the city upon the line of concentrated power in con- 
nection with concentrated responsibility began to disappear. 
The charter of the city of Brooklyn is probably as advanced a 
type as can be found of the results of this mode of thinking. 
In Brooklyn the executive side of the city government is 
represented by the mayor and the various heads of depart- 
ments. The legislative side consists of a common council of 
nineteen members, twelve of whom are elected from three 
districts each having four aldermen, the remaining seven being 
elected as aldermen at large by the whole city. The people 
elect three city officers besides the board of aldermen; the 
mayor, who is the real, as well as the nominal, head of the 
city; the comptroller, who is practically the book-keeper of 
the city; and the auditor, whose audit is necessary for the 
payment of every bill against the city whether large or small. 
The mayor appoints absolutely, without confirmation by the 
common council, all the executive heads of departments. He 
appoints, for example, the police commissioner, the fire com- 
missioner, the health commissioner, the commissioner of city 
works, the corporation counsel or counsellor at law, the city 
treasurer, the tax collector, and in general all the officials who 
are charged with executive duties. These officials in turn 
appoint their own subordinates, so that the principle of defined 
responsibility permeates the city government from top to 
bottom. The mayor also appoints the board of assessors, the 
board of education, and the board of elections. The executive 
officers appointed by the mayor are appointed for a term of 
two years, that is to say for a term similar to his own. The 
mayor is elected at the general election in November ; he takes 



chap, lii MUNICIPAL GOVERNMENT 657 

office on the first of January following, and for one month the 
great departments of the city are carried on for him by the 
appointees of his predecessor. On the first of February it 
becomes his duty to appoint his own heads of departments, and 
inasmuch as they serve for the same term as himself, each 
incoming may >r thus has the opportunity to make an adminis- 
tration in all its parts in sympathy with himself. Each one 
of these great executive departments is under the charge of a 
single head, the charter of the city conforming absolutely to 
the theory that where executive work is to be done it should 
be committed to the charge of one man. Where boards of 
officials exist in Brooklyn, it is because the work committed 
to them is discretionary more than it is executive in character. 
These boards, also, are appointed by the mayor without con- 
firmation by the board of aldermen, but they are appointed 
for terms not coterminous with his own; so that, in most 
cases, no mayor would appoint the whole of any such board 
unless he were to be twice elected by the people. In other 
words, with quite unimportant exceptions, the charter of 
Brooklyn, a city with 900,000 inhabitants, makes the mayor 
entirely responsible for the conduct of the city government on 
its executive side, and, in holding him to this responsibility, 
equips him fearlessly with the necessary power to discharge 
his trust. This charter went into effect on the first of January 
1882. It has been found to have precisely the merits and the 
defects which one might expect of such an instrument. A 
strong executive can accomplish satisfactory results ; a weak 
one can disappoint every hope. The community, however, is 
so well satisfied that the charter is a vast improvement on any 
system which it has tried before, that no voice is raised against 
it. It has had one notable and especially satisfactory effect. 
It can be made clear to the simplest citizen that the entire 
character of the city government for two years depends upon 
the man chosen for the office of mayor. As a consequence 
more people have voted in Brooklyn on the subject of the 
mayoralty than have voted there as to who should be Gov- 
ernor of the State. This is a great and a direct gain for good 
city government, because it creates and keeps alert a strong 
public sentiment, and tends to increase the interest of all 
citizens in the affairs of their city. In the absence of a his- 
vol. i 2 u 



658 THE STATE GOVERNMENTS part ii 

toric past which ministers to civic pride, and in the presence 
of many thousands of new-comers at every election, this effect 
is especially valuable. It may also be said that under present 
conditions the voting is more intelligent than formerly. The 
issue is so important, yet so simple, that it can be made clear 
even to people who have lived but a short time in the city. 
The same influences tend to secure for the city the services, 
as mayor, of a higher grade of men, because under such a 
charter the mayor is given power and opportunity to accom- 
plish something. It appeals to the best that is in a man as 
strongly as it exposes him to the fire of criticism if he does 
not do well. 

In undertaking to administer this charter, as the first mayor 
to whom such powers had been committed, the writer adopted 
two principles which he believed to be essential to success. 
In the first place, he determined to hold each head of depart- 
ment responsible for results within his department ; and in the 
second place, he determined to hold himself entirely aloof from 
the use of patronage, except in so far as the charter of the city, 
in express terms, made it his duty to make appointments. The 
effect of this attitude towards his appointees was to leave them 
entirely free in the choice of their subordinates. Being free, 
they could justly be held responsible, to the fullest extent, for 
results. Further than that, being free from pressure from the 
mayor, they were much stronger to resist pressure as to pat- 
ronage from outsiders, than otherwise they would have been. 
Another effect of the mayor's attitude with reference to pat- 
ronage, was to secure for himself the confidence of the commu- 
nity, without regard to party, to an unusual extent. Any 
alarm there might have been, as to the use of the great and 
unusual powers committed to the mayor by the charter, was 
quieted at once. 

The duties of the mayor under the charter may be consid- 
ered under three heads. First, in his relation to the executive 
work of the city ; second, in his relation to the common coun- 
cil or local legislature ; third, in his relation to the legislature 
of the State. 

The successful use of the power of appointment, in the 
selection of efficient heads of departments, of course underlies 
the success of a city administration on its executive side. The 



chap, lii MUNICIPAL GOVERNMENT 659 



heads of departments having been appointed, it was the custom 
of the writer to hold a meeting in the mayor's office with all 
his executive appointees, once every week, excepting during 
the summer when the common council was not in session. 
This meeting served several purposes. The minutes of the 
common council at their previous meeting were laid before this 
informal gathering, and the mayor received the advice of the 
officer whose department would be affected by any proposed 
resolution or ordinance, as to its probable effect. When a 
question was brought up of general interest to the city the 
whole company discussed it, giving to the mayor the advantage 
of their experience and judgment. These weekly councils were 
of great value to the mayor, in determining his attitude on the 
various questions raised during his term by the common coun- 
cil of the city, every resolution of which body had by law to 
be passed upon by the mayor, and receive either his approval 
or his veto. These gatherings of the executive officers of the 
city were useful in other ways than this. They made all heads 
of departments personally acquainted with each other, and 
converted the machinery of the city government, from sepa- 
rate and independent departments, into one organization work- 
ing in complete harmony and with singleness of aim. The 
mayor's oversight of the executive work of the city, in its cur- 
rent aspect, was further maintained by quarterly reports sub- 
mitted from each of the large departments. The mayor's 
office, in an American city, is in receipt of daily complaints 
touching this or that matter affecting citizens. The receipt 
of all complaints was immediately acknowledged to the per- 
sons who made them, if they came by mail, and the com- 
plaints were forwarded at once to the proper department for 
action or explanation. The reply was made to the mayor's 
office, and was communicated without delay to the maker of 
the complaint. If remedy was available, this method secured 
its prompt application. If the matter were beyond reach of 
remedy, the citizen had at least the satisfaction of knowing 
why. The multiplicity and character of these complaints 
gave the mayor a daily insight into the efficiency of the de- 
partments. By these methods, the mayor was able to keep 
himself almost as well informed as to the work in each depart- 
ment of the city as the head of a great business house is 



THE STATE GOVERNMENTS 



informed as to the departments into which his business is 
divided. Nor need the comparison stop there. The mayor 
was able to bring the power and influence of his office to bear, 
to remedy abuses or to suggest improvements in methods, 
with the same directness and efficiency. 

The mayor's duties in relation to the common council of the 
city, are chiefly in connection with the obligation, laid upon 
him by the charter, to approve or disapprove every resolution 
passed by that body. The mayor's veto is fatal, unless over- 
ridden by a two-thirds vote of all the members elected to the 
council. For three years out of four during which the writer 
served as mayor, the common council was politically antago- 
nistic to him, half of the time in the proportion of fourteen to 
five. Notwithstanding this, only two vetoes were overridden 
in the whole of his four years of service. Two influences 
probably contributed to this result. First, the care with 
which, under the advice of his appointees, the mayor took up 
his positions : and second, the mayor's refusal to implicate 
himself, in any way, with the use of patronage. Partisan 
opposition largely disappeared, before a spirit manifestly free 
from self-seeking and from partisanship. The same influences 
led to unusual co-operation, on the part of the common coun- 
cil, in forwarding the plans of the mayor in the direction of 
positive action. The harmony between the executive and the 
legislature of the city was scarcely less complete, during this 
interval, to the great advantage of the city, than was the har- 
mony between the different executive departments themselves. 

The relation of the mayor to the legislature of the State 
proved to be important to an extent not easy to be imagined. 
The charter of a city, coming as it does from the legislature, is 
entirely within the control of the legislature. Just as there is 
no legal bar to prevent the legislature from recalling the char- 
ter altogether, so there is no feature of the charter so minute 
that the legislature may not assume to change it. In the 
State of New York there is no general law touching the gov- 
ernment of cities, and the habit of interference in the details 
of city action has become to the legislature almost a second 
nature. In every year of his term, the writer was compelled 
to oppose at Albany, the seat of the State legislature, legisla- 
tion seeking to make an increase in the pay of policemen and 



chap, lii MUNICIPAL GOVERNMENT 661 

firemen, without any reference to the financial ability of the 
city, or the other demands upon the city for the expenditure 
of money. Efforts were made, also, at one time, to legislate 
out of office some of the officials who had been appointed in 
conformity to the charter. New and useless offices were 
sought to be created, and the mayor found that not the least 
important of his duties, as mayor, was to protect the city from 
unwise and adverse legislation on the part of the State. It is 
a curious circumstance that most of these propositions had 
their origin with members of the legislature elected to repre- 
sent different districts of the city itself. The same influ- 
ences which made the administration strong with the common 
council, at home, made it also strong with the legislature at 
Albany, so that, although for one or two years the power to 
make changes rested with a majority at Albany politically 
antagonistic, no law objected to by the mayor, during this 
interval, was placed upon the statute-book. The city itself is 
compelled at times to seek legislation for the enlargement of 
its powers ; that is to say, the powers committed to a city are 
strictly limited to those defined by the charter or granted by 
special acts of the legislature. Consequently, when an unfore- 
seen situation is to be dealt with, calling for unusual methods 
or powers, it is necessary to secure authority to this end from 
the legislature of the State. The writer found the same gen- 
eral attitude, which has been referred to so often, effectual in 
this regard also, so that almost every bill which he desired in 
the interest of the city, was enacted into law, and this alike 
by legislatures politically in sympathy with the city adminis- 
tration and by legislatures politically antagonistic to it. It is 
not too much to say, however, that the greatest anxieties of 
his term sprang from the uncertainties and difficulties of this 
annual contest, on the one hand to advance the interest of che 
city, and on the other to save it from harm in its relations to 
the law-making power of the State. 

Imitating this charter of Brooklyn, the city of Philadelphia, 
still more recently, has obtained a new charter involving a 
great departure in the same direction from old methods. Bos- 
ton and New York both have moved partly along the same line, 
each with admitted advantage to the city, although neither has 
gone so far as Brooklyn or Philadelphia. Several smaller places 



662 THE STATE GOVERNMENTS part ii 

have obtained charters of the same kind. It is not to be sup- 
posed that this new form of city charter is the result alto- 
gether of abstract thinking. It has grown out of bitter expe- 
riences. When the inhabitants of a city found that they did 
not receive, as matter of fact, the good government which they 
desired, it did not at first occur to them that the trouble was 
to a large extent fundamental in their form of charter ; or, 
if it did, the first effort at remedy led to worse mistakes than 
before. Starting with the theory that the path to safety was 
through division of power, they resorted to all manner of ex- 
pedients which would compass that end. They established, 
for instance, police boards and fire boards, which at different 
times were made to consist of three members, and at other 
times of four, the latter being known in American parlance as 
non-partisan. 1 It was supposed that a single individual might 
be tempted to use his department unfairly in the interest of 
the party to which he belonged, but that by associating him 
with others of different parties this tendency would be over- 
come. It turned out, however, that the moment no one in 
particular was to blame, partisanship took complete possession 
of the administration of every department. When one reflects 
that in the Government of the United States the immense ad- 
ministrative departments, like the Treasury and the Post-Ofiice, 
have, from the beginning of the Government, been committed 
to the care of a single man, it seems strange that, in their 
cities, Americans should have been so unwilling to proceed upon 
the same theory. The reason probably is that the city, as 
above pointed out, has been evolved from the town by the 
simple process of enlargement. In the town the theory of di- 
vision of power has been acted upon with substantial uni- 
formity, and in small communities has worked well. The 
attempt to act upon the same lines in the great and rapidly- 
growing cities of the country has, in the judgment of many, 
been as instrumental as any other one element in causing the 
unsatisfactory results which have marked the progress of 
many American cities. For the purposes of this chapter it is 
not necessary to enlarge further upon this thought. It is em- 
phasized thus far for the purpose of showing that all the large 

1 Non-partisan practically means that the two great parties are equally rep- 
resented upon it. 



MUNICIPAL GOVERNMENT 



class of difficulties which American cities have been obliged 
to face by reason of faulty charters are not irremediable. The 
actual process of change from one system of charter to an- 
other has been marked incidentally by one unfortunate effect. 
The city charter, coming as it does from the legislature, lies 
entirely within the control of the legislature. The many ap- 
peals to the legislature for charter amendment of one kind 
and another have bred a habit in some of the States, if not 
in all, of constant interference by the legislature with the 
local details of city action. This interference, though often 
prompted by a genuine desire to relieve a city from pressing 
evils, has tended very greatly to lessen the sense of responsi- 
bility on the part of local officials, and upon the part of 
communities themselves. It is one of the best effects of 
Brooklyn's charter, that it has helped to create in that city a 
very decided spirit of home rule, which is ready to protest at 
any moment against interference on the part of the State 
with local matters. 

It remains to be said that the one organic problem in con- 
nection with the charters of cities, which apparently remains 
as far from solution as ever in America, is that which con- 
cerns the legislative branch of city government. In some 
cities the legislative side is represented by two bodies, or 
houses, known by different names in different cities, and pre- 
senting the same general characteristics as a State legislature 
with its upper and lower house. The most conspicuous in- 
stances of this kind are furnished by the city of Boston and 
the city of Philadelphia. In all the cities of New York State, 
the legislative branch consists of a single chamber indiffer- 
ently spoken of as the Board of Aldermeu or the Common 
Council. But whether these bodies have been composed of 
one house or two, the moment a city has become large they 
have ceased to give satisfactory results. Originally these bodies 
were given very large powers, in order to carry out to the 
utmost the idea of local self-government. As a rule they have 
so far abused these powers that almost everywhere the scope 
of their authority has been greatly restricted. In the city of 
New York that tendency has been acted upon to so great an 
extent as to deprive the common council of every important 
function it ever possessed, except the single power to grant 



664 THE STATE GOVERNMENTS part ii 

public franchises. How greatly they have abused this remain- 
ing power is unfortunately matter of public record. The pow- 
ers thus taken away from the common council, are ordinarily 
lodged with boards made up of the higher city officials. Even 
in the city of New York it has seldom been the case that the 
mayor of the city has not been a man of good repute and of 
some parts. As a general proposition, it is found in American 
cities that the larger the constituency to which a candidate 
must appeal, and the more important the office, the more of a 
man the candidate must be. What may be the outcome of this 
difficulty as to the legislative body in cities, it is impossible to 
say. Sometimes it seems almost as though the attempt would 
be made to govern cities without any local legislature. But, 
on the other hand, there are so many matters in regard to 
which such a body ought to have power, that thus far no one 
has ventured seriously to take so extreme a view. It may 
fairly be said to be, therefore, the great unsolved organic 
problem in connection with municipal government in the 
United States. That it is so, illustrates with vividness the 
justice of the American view that it is a dangerous thing, in 
wholly democratic communities, to make the legislative body 
supreme over the executive. 

Thus far in this chapter, the shortcomings of the American 
city have been admitted, and the effort has been made to show 
the peculiar difficulties with which such a city has to deal. It 
ought to be said that, despite all of these difficulties, the average 
American city is not going from bad to worse. There is sub- 
stantial reason for thinking that the general tendency, even in 
the larger cities, is towards improvement. Life and property 
are more secure in almost all of them than they used to be. 
Certainly there has been no decrease of security such as might 
reasonably have been expected to result from increased size. 
Less than a score of years ago it was impossible to have a fair 
election in New York or Brooklyn. To-day, and for the last 
decade, under the present system of registry laws, every elec- 
tion is held with substantial fairness. The health of our cities 
does not deteriorate, but on the average improves. So that in 
the large and fundamental aspect of the question the progress, 
if slow, is steady in the direction of better things. It is not 
strange that a people conducting an experiment in city govern- 



chap, lii MUNICIPAL GOVEKNMENT 665 



ment for which there is absolutely no precedent, under condi- 
tions of exceptional difficulty, should have to stumble towards 
correct and successful methods through experiences that are 
both costly and distressing. There is no other road towards 
improvement in the coming time. But it is probable that in 
another decade Americans will look back on some of the scan- 
dals of the present epoch in city government, with as much 
surprise as they now regard the effort to control fires by the 
volunteer fire department, which was insisted upon, even in 
the city of New York, until within twenty-five years. As 
American cities grow in stability, and provide themselves with 
the necessary working plant, they approximate more and more 
in physical conditions to those which prevail in most European 
cities. As they do so, it is reasonable to expect that their 
pavements will improve and the condition of their streets be 
more satisfactory. American cities, as a rule, have a more 
abundant supply of water than European cities, and they are 
more enterprising in furnishing themselves with what in Europe 
might be called the luxuries of city life, but which, in America, 
are so common as almost to be regarded as necessities. Espe- 
cially is this true of every convenience involving the use of elec- 
tricity. There are more telephone wires, for example, in New 
York and Brooklyn, than in the whole of the United Kingdom. 
The problem of placing these wires underground therefore, to 
take in passing an illustration, of another kind, of the diffi- 
culties of city government in America, is vastly greater than 
in any city abroad, because the multiplication of the wires is 
so constant and at so rapid a rate that as fast as some are 
placed beneath the surface, those which have been strung- 
while this process has been going on seem as numerous as 
before the underground movement began. 

It may justly be said, therefore, that the American city, if 
open to serious blame, is also deserving of much praise. Every 
one understands that universal suffrage has its drawbacks, and 
in cities these defects become especially evident. It would be 
uncandid to deny that many of the problems of American cities 
spring from this factor, especially because the voting popula- 
tion is continually swollen by foreign immigrants whom time 
alone can educate into an intelligent harmony with the Ameri- 
can system. But because there is scum upon the surface of a 



666 THE STATE GOVERNMENTS part ii 

boiling liquid, it does not follow that the material, nor the 
process to which it is subjected, is itself bad. Universal suf- 
frage, as it exists in the United States, is not only a great 
element of safety in the present day and generation, but it is 
perhaps the mightiest educational force to which the masses 
of men ever have been exposed. In a country where wealth 
has no hereditary sense of obligation to its neighbours, it is 
hard to conceive what would be the condition of society if 
universal suffrage did not compel every one having property to 
consider, to some extent at least, the well-being of the whole 
community. 

It is probable that no other system of government would 
have been able to cope any more successfully, on the whole, 
with the actual conditions that American cities have been com- 
pelled to face. It may be claimed for American institutions 
even in cities, that they lend themselves with wonderfully 
little friction to growth and development and to the peaceful 
assimilation of new and strange populations. Whatever de- 
fects have marked the progress of such cities, no one acquainted 
with their history will deny that since their problem assumed 
its present aspect, progress has been made, and substantial 
progress, from decade to decade. The problem will never be 
anything but a most difficult one, but with all its difficulties 
there is every reason to be hopeful. 



APPENDIX 

NOTE TO CHAPTER III 

ON CONSTITUTIONAL CONVENTIONS 

In America it is always by a convention (i. e. a representative body 
called together for some occasional or temporary purpose) that a constitu- 
tion is framed. It was thus that the first constitutions for the thirteen 
revolting colonies were drawn up and enacted in 1776 and the years fol- 
lowing ; and as early as 1780 the same plan had suggested itself as the 
right one for framing a constitution for the whole United States. 1 
Recognized in the Federal Constitution (Art. v.) and in the successive 
Constitutions of the several States as the proper method to be employed 
when a new constitution is to be prepared, or an existing constitution 
revised throughout, it has now become a regular and familiar part of the 
machinery of American government, almost a necessary part, because all 
American legislatures are limited by a fundamental law, and therefore 
when a fundamental law is to be repealed or largely recast, it is desirable 
to provide for the purpose a body distinct from the ordinary legislature. 
Where it is sought only to change the existing fundamental law in a few 
specified points, the function of proposing these changes to the people for 
their acceptance may safely be left, and generally is left, to the legislature. 
Originally a convention was conceived of as a sovereign body, wherein 
the full powers of the people were vested by popular election. It is now, 
however, usually an advisory body, which prepares a draft of a new con- 
stitution and submits it to the people for their acceptance or rejection. 2 
And it is not deemed to be sovereign in the sense of possessing the plen- 
ary authority of the people, for its powers may be, and now almost invari- 
ably are, limited by the statute under which the people elect it. 3 

1 It is found in a private letter of Alexander Hamilton (then only twenty- 
three years of age) of that year. 

2 The only recent exception to the now unvarying rule that conventions 
merely draft constitutions was furnished in 1890 by the State of Mississippi, 
where a convention, convoked under a statute, not only prepared, but actu- 
ally enacted, the present Constitution of the State. The circumstances were 
peculiar, and the same thing would not happen in any Northern State. As to 
Kentucky, see p. 433. 

3 The State Conventions which carried, or rather affected to carry, the seced- 
ing Slave States out of the Union, acted as sovereign bodies. Their proceedings, 
however, though clothed with legal forms, were practically revolutionary. 



668 APPENDIX 

Questions relating to the powers of a Constitutional Convention have 
several times come before the courts, so that there exists a small body of 
law as well as a large body of custom and practice regarding the rights 
and powers of such assemblies. Into this law and practice I do not pro- 
pose to enter. But it is worth while to indicate certain advantages which 
have been found to attach to the method of entrusting the preparation of 
a fundamental instrument of government to a body of men specially 
chosen for the purpose instead of to the ordinary legislature. The topic 
suggests interesting comparisons with the experience of France and other 
European countries in which constitutions have been drafted and enacted 
by the legislative, which has been sometimes also practically the execu- 
tive, authority. Nor is it wholly without bearing on problems which 
have recently arisen in England, where Parliament has found itself, and 
may find itself again, invited to enact what would be in substance a new 
constitution for a part of the United Kingdom. 

An American Constitutional Convention, being chosen for the sole 
purpose of drafting a constitution, and having nothing to do with the 
ordinary administration of government, no influence or patronage, no 
power to raise or appropriate revenue, no opportunity of doing jobs for 
individuals or corporations, is not necessarily elected on party lines or 
in obedience to party considerations. 1 Hence men comparatively indif- 
ferent to party are sometimes elected ; while those who seek to enter a 
legislature for the sake of party advancement or the promotion of some 
private gainful object do not generally care to serve in a convention. 

When the convention meets, it is not, like a legislature, a body strictly 
organized by party. A sense of individual independence and freedom 
may prevail unknown in legislatures. Proposals have therefore a chance 
of being considered on their merits. A scheme does not necessarily com- 
mand the support of one set of men nor encounter the hostility of another 
set because it proceeds from a particular leader or group. And as the 
ordinary party questions do not come up for decision while its delibera- 
tions are going on, men are not thrown back on their usual party affili- 
ations, nor are their passions roused by exciting political issues. 

Having no work but constitution-making to consider, a convention is 
free to bend its whole mind to that work. Debate has less tendency to 
stray off to irrelevant matters. Business advances because there are no 
such interruptions as a legislature charged with the ordinary business of 
government must expect. 

Since a convention assembles for one purpose only, and that a purpose 
specially interesting to thoughtful and public-spirited citizens, and since 
its duration is short, men who would not care to enter a legislature, men 
pressed by professional labours, or averse to the "rough and tumble " of 
politics, a class large in America and increasing in Europe, are glad to 
serve on it, while mere jobbers or office-seekers find little to attract them 

1 The questions of practical importance to the States which a State Con- 
vention deals with are very often not in issue between the two State parties, 
seeing that the latter are formed on national lines. 



ON CONSTITUTIONAL CONVENTIONS 669 



in its functions. 1 Thus the level of honesty, even more than of ability, 
is higher in conventions than in legislatures. 

The fact that the constitution when drafted has to be submitted to the 
people, by whose authority it will (if accepted) be enacted, gives to the 
convention a somewhat larger freedom for proposing what they think 
best than a legislature, courting or fearing its constituents, commonly 
allows itself. As the convention vanishes altogether when its work is 
accomplished, the ordinary motives for popularity -hunting are less potent. 
As it does not legislate but merely proposes, it need not fear to ask the 
people to enact what may offend certain persons or classes, for the odium, 
if any, of harassing these classes will rest with the people. And as the 
people must accept or reject the draft en bloc (unless in the rare case 
where provision is made for voting on particular points separately), more 
care is taken in preparing the draft, in clearing it of errors and repug- 
nances, than a legislature capable of repealing or altering in its next 
session what it now provides, bestows on the details of its measures. 

Those who are familiar with European parliaments may conceive that 
as a set-off to these advantages there will be a difficulty in getting a num- 
ber of men not organized by parties to work promptly and efficiently, 
that a convention will be, so to speak, an amorphous body, that if it has 
no leaders nor party allegiance it will divide one way to-day and another 
way to-morrow, that the abundance of able men will mean an abundance 
of doctrinaire proposals and a reluctance to subordinate individual pre- 
possessions to practical success. Admitting that such difficulties do 
sometimes arise, it may be observed that in America men quickly organ- 
ize themselves for any and every purpose, and that doctrinairism is there 
so uncommon a fault as to be almost a merit. When a complete new 
constitution is to be prepared, the balance of convenience is decidedly in 
favour of giving the work to a convention, for although conventions are 
sometimes unwise, they are usually composed of far abler men than those 
who fill the legislatures, and discharge their function with more wisdom 
as well as with more virtue. But where it is not desired to revise the 
whole frame of government, the simpler and better plan is to proceed by 
submitting to the people specific amendments, limited to particular pro- 
visions of the existing constitution ; and this is the method now most 
generally employed in improving State constitutions. 

The above remarks are of course chiefly based on the history of State 
conventions, because no national constitutional convention has sat since 
1787. But they apply in principle to any constitution-making body. 

1 Many of the men conspicuous in the public life of Massachusetts during the 
succeeding thirty years first made their mark in the Constitutional Convention 
of 1853. The draft framed by that Convention was, however, rejected by the 
people. The new Constitution for New York, framed by the Convention of 
1867, was also lost at the polls. That Convention was remarkable as being 
(according to Judge Jameson) the only one in which the requirement that a 
delegate must be resident in the district electing him was dispensed with 
(Constit. Conventions, § 267). 



670 APPENDIX 



NOTE TO CHAPTER IV 

WHAT THE FEDERAL CONSTITUTION OWES TO THE CONSTITUTIONS OF THE 
SEVERAL STATES 

The following statement of the provisions of the Federal Constitution 
which have been taken from or modelled upon State constitutions, is 
extracted from a valuable article by the late Mr. Alexander Johnston in 
the New Princeton Beview for September 1887 : — 

"That part of the Constitution, which has attracted most notice 
abroad, is probably its division of Congress into a Senate and a House of 
Representatives, with the resulting scheme of the Senate as based on the 
equal representation of the States. It is probably inevitable that the 
upper or hereditary House in foreign legislative bodies shall disappear in 
time. And it is not easy to hit on any available substitute ; and English 
writers for examples, judging from the difficulty of finding a substitute 
for the House of Lords, have rated too high the political skill of the Con- 
vention in hitting upon so brilliant a success as the Senate. But the 
success of the Convention was due to the antecedent experience of the 
States. Excepting Pennsylvania and Vermont, which then gave all 
legislative powers to one House, and executive powers to a governor and 
council, all the States had bicameral systems in 1787. 1 

"The name 'Senate' was used for the Upper House in Maryland, 
Massachusetts, New York, North Carolina, New Hampshire, and South 
Carolina and Virginia; and the name 'House of Representatives,' for 
the Lower House, was in use in Massachusetts, New Hampshire, and 
South Carolina, as well as in Pennsylvania and Vermont. 

" The rotation, by which one-third of the Senate goes out every two 
years, was taken from Delaware, where one-third went out each year, 
New York (one-fourth each year), Pennsylvania (one-third of the council 
each year), and Virginia (one-fourth each year). The provisions of the 
whole fifth section of Art. i., the administration of the two Houses, their 
power to decide the election of their members, make rules and punish 
their violation, keep a journal, and adjourn from day to day, are in so 
many State constitutions that no specification is needed for them. 

" The provision that money-bills shall originate in the House of Repre- 
sentatives is taken almost word for word from the Constitutions of Massa- 
chusetts and New Hampshire, as is the provision, which has never been 
needed, that the President may adjourn the two Houses when they cannot 
agree on a time of adjournment. The provision for a message is from the 

1 Georgia, however, had not till 1789 a true second chamher, her constitu- 
tion of 1777 having merely created an executive council elected by the Assem- 
bly from anions its own members. 

Vermont was not one of the thirteen original States, but was a semi-inde- 
pendent commonwealth, not a member of the Confederation of 1781, not 
represented in the Convention of 17S7. and not admitted to the Union till 
1791. 



THE FEDERAL CONSTITUTION 671 



Constitution of New York. All the details of the process of impeachment 
as adopted by the Convention may be found in the Constitutions of Dela- 
ware, Massachusetts, New Hampshire, New York, Pennsylvania, South 
Carolina, Vermont, Virginia, even to the provision in the South Carolina 
system that conviction should follow the vote of two -thirds of the mem- 
bers present. (It should be said, however, that the limitation of sentence 
in case of conviction to removal from office and disqualification for 
further office-holding is a new feature.) Even the much-praised pro- 
cess of the veto is taken en bloc from the Massachusetts Constitution of 
1780, and the slight changes are so evidently introduced as improvements 
on the language alone as to show that the substance was copied. 

"The adoption of different bases for the two Houses — the House of 
Representatives representing the States according to population, while the 
Senate represented them equally — was one of the most important pieces 
of work which the Convention accomplished as well as the one which it 
reached most unwillingly. All the States had been experimenting to find 
different bases for their two Houses. Virginia had come nearest to the 
appearance or the final result in having her Senate chosen by districts and 
her representatives by counties ; and, as the Union already had its 
'districts' formed (in the States), one might think that the Convention 
merely followed Virginia's experience. But the real process was far 
different and more circuitous. There were eleven States represented in 
the Convention, New Hampshire taking New York's place when the later 
withdrew, and Rhode Island sending no delegates. Roughly speaking, 
five States wanted the ' Virginia plan ' above stated ; five wanted one 
House as in the Confederation with State equality in it ; and one (Con- 
necticut) had a plan of its own to which the other ten States finally 
acceded. The Connecticut system since 1699, when its legislature was 
divided into two Houses, had maintained the equality of the towns in the 
Lower House, while choosing the members of the Upper House from the 
whole people. In like manner its delegates now proposed that the States 
should be equally represented in the Senate, while the House of Repre- 
sentatives, chosen from the States in proportion to population, should 
represent the people numerically. The proposition was renewed again 
and again for nearly a month until the two main divisions of the Conven- 
tion, unable to agree, accepted the ' Connecticut compromise,' as Bancroft 
calls it, and the peculiar constitution of the Senate was adopted. 

" The President's office was simply a development of that of the gov- 
ernors of the States. The name itself had been familiar ; Delaware, New 
Hampshire, Pennsylvania, and South Carolina, had used the title of 
President instead of that of Governor. In all the States the governor 
was commander-in-chief, except that in Rhode Island he was to have the 
advice of six assistants, and the major part of the freemen, before enter- 
ing upon his duties. The President's pardoning power was drawn from 
the example of the States ; they had granted it to the governors (in some 
cases with the advice of a council) in all the States except Connecticut, 
Rhode Island, and Georgia, where it was retained to the legislature, and 
in South Carolina, where it seems to have been forgotten in the Constitu- 



672 APPENDIX 



tion of 1778, but was given to the governor in 1790. The governor was 
elected directly by the people in Connecticut, Massachusetts, New York, 
and Rhode Island, and indirectly by the two Houses in the other eight 
States ; and in this nearly equal division we may, perhaps, find a reason 
for the Convention's hesitation to adopt either system, and for its futile 
attempt to introduce an electoral system, as a compromise. The power 
given to the Senate of ratifying or rejecting the President's appointments 
seems to have been an echo of New York's council of appointment ; the 
most strenuous and persistent efforts were made to provide a couucil to 
share in appointments with the President ; the admission of the Senate 
as a substitute was the furthest concession which the majority would 
make ; and hardly any failure of details caused more heart-burnings than 
the rejection of this proposed council for appointments. 

" The President's power of filling vacancies, by commissions to expire 
at the end of the next session of the Senate, is taken in terms from the 
Constitution of North Carolina. 

4 ' Almost every State prescribed a form of oath for its officers ; the 
simple and impressive oath of the President seems to have been taken 
from that of Pennsylvania, with a suggestion, much improved in 
language, from the oath of allegiance of the same State. The office of vice- 
president was evidently suggested by that of the deputy, or lieutenant- 
governor (in four States the vice-president) of the States. The exact 
prototype of the office of vice-president is to be found in that of the 
lieutenant-governor of New York. He was to preside in the Senate, with- 
out a vote, except in case of a tie, was to succeed the governor, when suc- 
cession was necessary, and was to be succeeded by the President pro 
tempore of the Senate. 

"The provisions for the recognition of inter-State citizenship, and for 
the rendition of fugitive slaves and criminals, were a necessity in any such 
form of government as was contemplated, but were not at all new. They 
had formed a part of the eighth article of the New England Confederation 
of 1643. Finally the first ten amendments, which were tacitly taken as a 
part of the original instrument, are merely a selection from the substance 
or the spirit of the Bills of Rights which preceded so many of the State 
constitutions. 

" The most solid and excellent work done by the Convention was its 
statement of the powers of Congress (in § 8 of Art. i.) and its definition 
of the sphere of the Federal judiciary (in Art. hi.). The results in both of 
these cases were due, like the powers denied to the States and to the 
United States (in §§ 9 and 10 of Art. L), to the previous experience of 
government by the States alone. For eleven years or more (to say noth- 
ing of the antecedent colonial experience) the people had been engaged 
in their State governments in an exhaustive analysis of the powers of 
government. The failures in regard to some, the successes in regard to 
others, were all before the Convention for its consideration and guidance. 

"Not creative genius, but wise and discreet select ion was the proper work 
of the Convention ; and its success was due to the clear perception of the 
antecedent failures and successes, and to the self-restraint of its members. 



RULES OF THE SENATE 673 



"The (presidential) electoral system was almost the only feature of 
the Constitution not suggested by State experience, 1 almost the only 
feature which was purely artificial, not a natural growth ; it was the one 
which met with least criticism from contemporary opponents of the 
Constitution and most unreserved praise from the Federalist; and de- 
mocracy has ridden right over it." 



NOTE TO CHAPTER X 

EXTRACTS FROM THE RULES OF THE SENATE 

A quorum shall consist of a majority of the senators, duly chosen and 
sworn. 

The legislative, the executive, the confidential legislative proceedings, 
and the proceedings when sitting as a Court of Impeachment, shall each 
be recorded in a separate book. 

When the yeas and nays are ordered, the names of senators shall be 
called alphabetically ; and each senator shall, without debate, declare his 
assent or dissent to the question, unless excused by the Senate ; and no 
senator shall be permitted to vote after the decision shall have been 
announced by the presiding officer, but may for sufficient reasons, with 
unanimous consent, change or withdraw his vote. 

When a senator declines to vote on call of his name, he shall be 
required to assign his reasons therefor, and on his having assigned them, 
the presiding officer shall submit the question to the Senate, " Shall the 
senator for the reasons assigned by him, be excused from voting ? " which 
shall be decided without debate. 

In the appointment of the standing committees, the Senate, unless 
otherwise ordered, shall proceed by ballot to appoint severally the chair- 
man of each committee, and then, by one ballot, the other members 
necessary to complete the same. A majority of the whole number of 
votes given shall be necessary to the choice of a chairman of a standing 
committee, but a plurality of votes shall elect the other members thereof. 
All other committees shall be appointed by ballot, unless otherwise 
ordered, and a plurality of votes shall appoint. 

At the second or any subsequent session of a Congress, the legislative 
business which remained undetermined at the close of the next preceding 
session of that Congress shall be resumed and proceeded with in the same 
manner as if no adjournment of the Senate had taken place. 

1 But it is well observed by Mr. J. H. Robinson (Original and Derived 
Features of the United States Constitution, p. 29) that this system may have 
been suggested by the Constitution of Maryland (1776) , which provided for a 
choice of the State Senators by a body of electors chosen every five years by 
the people for this purpose. Mr. Robinson rightly disapproves Sir H. Maine's 
comparison of the electoral system of the Romano-Germanic Empire. 
VOL. I 2 X 



674 APPENDIX 



On a motion made and seconded to close the doors of the Senate, on 
the discussion of any business which may, in the opinion of a senator, 
require secrecy, the presiding officer shall direct the galleries to be cleared ; 
and during the discussion of such motion the doors shall remain closed. 

When the President of the United States shall meet the Senate in the 
Senate chamber for the consideration of executive business, he shall have 
a seat on the right of the presiding officer. When the Senate shall be 
convened by the President of the United States to any other place, the 
presiding officer of the Senate and the senators shall attend at the place 
appointed, with the necessary officers of the Senate. 

When acting upon confidential or executive business, unless the same 
shall be considered in open executive session, the Senate chamber shall 
be cleared of all persons except the secretary, the chief clerk, the prin- 
cipal legislative clerk, the executive clerk, the minute and journal clerk, 
the sergeant-at-arms, the assistant doorkeeper, and such other officers as 
the presiding officer shall think necessary, and all such officers shall be 
sworn to secrecy. 

All confidential communications made by the President of the United 
States to the Senate shall be by the senators and the officers of the Senate 
kept secret ; and all treaties which may be laid before the Senate, and all 
remarks, votes, and proceedings thereon, shall also be kept secret until 
the Senate shall, by their resolution, take off the injunction of secrecy, 
or unless the same shall be considered in open executive session. 

Any senator or officer of the Senate who shall disclose the secret or 
confidential business or proceedings of the Senate shall be liable, if a 
senator, to suffer expulsion from the body ; and if an officer, to dismissal 
from the service of the Senate, and to punishment for contempt. 

On the final question to advise and consent to the ratification of a 
treaty in the form agreed to, the concurrence of two-thirds of the senators 
present shall be necessary to determine it in the affirmative ; but all other 
motions and questions upon a treaty shall be decided by a majority vote, 
except a motion to postpone indefinitely, which shall be decided by a vote 
of two-thirds. 

When nominations shall be made by the President of the United States 
to the Senate, they shall, unless otherwise ordered, be referred to ap- 
propriate committees ; and the final question on every nomination shall 
be, "Will the Senate advise and consent to this nomination ? " Which 
question shall not be put on the same day on which the nomination is 
received, nor on the day on which it may be reported by a committee, 
unless by unanimous consent. 

All information communicated or remarks made by a senator, when 
acting upon nominations, concerning the character or qualifications of 
the person nominated, also all votes upon any nomination, shall be kept 
secret. If, however, charges shall be made against a person nominated, 
the committee may, in its discretion, notify such nominee thereof, but 
the name of the person making such charges shall not be disclosed. The 
fact that a nomination has been made, or that it has been confirmed or 
rejected, shall not be regarded as a secret. 



PRIVATE BILLS 675 



NOTE (A) TO CHAPTER XVI 

PRIVATE BILLS 

In England a broad distinction is drawn between public bills and local 
or private bills. The former class includes measures of general applica- 
tion, altering or adding to the general law of the land. The latter includes 
measures intended to apply only to some particular place or person, as for 
instance, bills incorporating railway or gas or water companies or extend- 
ing the powers of such bodies, bills authorizing municipalities to execute 
public improvements, as well as estate bills, bills relating to charitable 
foundations, and (for Ireland) divorce bills. 1 Bills of the local and per- 
sonal class have for many years past been treated differently from public 
bills. They are brought in, as it is expressed, on petition, and not on 
motion. Notice is required to be given of such a bill by advertisement 
nearly three months before the usual date of the meeting of Parliament, 
and copies must be deposited some weeks before the opening of the ses- 
sion. The second reading is usually granted as a matter of course ; and 
after second reading, instead of being, like a public bill, considered in 
committee of the whole House, it goes (if opposed) to a private bill com- 
mittee consisting (usually) of four members, who take evidence regard- 
ing it from the promoters and opponents, and hear counsel argue for and 
against its preamble and its clauses. In fact, the proceedings on private 
bills are to some extent of a judicial nature, although of course the com- 
mittee must have regard to considerations of policy. 

Pecuniary claims against the Government are in England not raised by 
way of private bill. They are presented in the courts by a proceeding 
called a petition of right, the Crown allowing itself to be sued by one of 
its subjects. 

In America no such difference of treatment as the above exists between 
public and private bills ; all are dealt with in substantially the same way 
by the usual legislative methods. A bill of a purely local or personal 
nature gets its second reading as a matter of course, like a bill of general 
application, is similarly referred to the appropriate committee (which may 
hear evidence regarding it, but does not hear counsel), is considered and 
if necessary amended by the committee, is, if time permits, reported back 
to the House, and there takes its chance among the jostling crowd of 
other bills, Fridays, however, being specially set apart for the considera- 
tion of private business. There is a calendar of private bills, and those 
which get a place early upon it have a chance of passing. A great many 
are unopposed, and can be hurried through by " unanimous consent." 
Private bills are in Congress even more multifarious in their contents, 

1 The official distinction in the yearly editions of the Statutes is into Public 
General Acts, Public Acts of a local character (which include Provisional 
Order Acts and Local Acts), and Private Acts. But in ordinary speech, those 
measures which are brought in at the instance of particular persons for a local 
purpose are called private. 



676 APPENDIX 



as well as incomparably more numerous, than in England, although they 
do not include the vast mass of bills for the creation or regulation of vari- 
ous public undertakings within a particular State, since these would fall 
within the province of the State legislature. They include three classes 
practically unknown in England, pension bills, which propose to grant a 
pension to some person (usually a soldier or his widow), bills for satisfy- 
ing some claim of an individual against the Federal Government, and 
bills for dispensing in particular cases with a variety of administrative 
statutes. Matters which in England would be naturally left to be dealt 
with at the discretion of the executive are thus assumed by the legisla- 
ture, which is (for reasons that will appear in later chapters) more anx- 
ious to narrow the sphere of the executive than are the ruling legislatures 
of European countries. I subjoin from the private bills of the session of 
1880-81 some instances showing how wide is the range of congressional 
interference. 

In the House or Representatives 

Read twice, referred to the Committee on Invalid Pensions, and ordered 
to be printed. 

Mr. Murch introduced the following bill : — 

A Bill 

Eor the relief of James E. Gott. 
Be it enacted 

1 By the Senate and House of Representatives of the 

2 United States of America in Congress Assembled. 

3 That the Secretary of the Interior be, and he is hereby, 

4 Authorized and directed to increase the pension of James E. 

5 Gott, late a member of Company A, Fourteenth Regiment, 

6 Maine Volunteers, to twenty-four dollars per month. 



Read twice, referred to the Committee on War Claims, and ordered to 
be printed. 

A Bill 

Eor the relief of the heirs of George W. Hayes. 

Be it enacted, 

That the proper accounting officer of the Treasury be, and he is hereby, 
directed to pay to the heirs of George W. Hayes, of North Carolina, the 
sum of four hundred and fifty dollars, for three mules furnished the 
United States Army in eighteen hundred and sixty-four, for which they 
hold proper vouchers. 

Read twice, and referred to the Committee on Naval Affairs. 
A Bill 
Eor the relief of Thomas G. Corbin. 
Be it enacted, etc. 

That the President of the United States be, and is hereby, authorized 
to restore Thomas G. Corbin, now a captain on the retired list of the 



THE LOBBY 677 



Navy, to the active list, and to take rank next after Commodore J. W. 
A. Nicholson, with restitution, from December twelfth, eighteen hundred 
and seventy-three, of the difference of pay between that of a commodore 
on the active list, on " waiting orders " pay, and that of a captain retired 
on half-pay, to be paid out of any money in the Treasury not otherwise 
appropriated. 

Read twice, referred to the Committee on Ways and Means, and 
ordered to be printed. 

Mr. Robinson introduced the following joint resolution : — 

Joint Resolution 

Authorizing the remission or refunding of duty on a painted-glass window 
from London, England, for All Souls' Church, in Washington, Dis- 
trict of Columbia. 

Besolved by the Senate and House of Representatives of the United 
States of America in Congress Assembled. 

That the Secretary of the Treasury be, and he is hereby, authorized 
and directed to remit or refund, as the case may be, the duties paid or 
accruing upon a painted-glass window from London, England, for All 
Souls' Church, in Washington, District of Columbia, imported, or to be 
imported into Baltimore, Maryland, or other port. 



NOTE (B) TO CHAPTER XVI 

THE LOBBY 

"The Lobby" is the name given in America to persons, not being 
members of a legislature, who undertake to influence its members, and 
thereby to secure the passing of bills. The term includes both those who, 
since they hang about the chamber, and make a regular profession of 
working upon members, are called "lobbyists," and those persons who 
on any particular occasion may come up to advocate, by argument or 
solicitation, any particular measure in which they happen to be interested. 
The name, therefore, does not necessarily impute any improper motive or 
conduct, though it is commonly used in what Bentham calls a dyslogistic 
sense. 

The causes which have produced lobbying are easily explained. Every 
legislative body has wide powers of affecting the interests and fortunes of 
private individuals, both for good and for evil. It entertains in every 
session some public bills, and of course many more private (i.e. local or 
personal) bills, which individuals are interested in supporting or resist- 
ing. Such, for instance, are public bills imposing customs duties or regu- 
lating the manufacture or sale of particular articles (e.g. intoxicants, ex- 
plosives), and private bills establishing railroad or other companies, or 



678 APPENDIX 



granting public franchises, or (in State legislatures) altering the areas of 
local government, or varying the taxing or borrowing powers of munici- 
palities. When such bills are before a legislature, the promoters and the 
opponents naturally seek to represent their respective views, and to en- 
force them upon the members with whom the decision rests. So far there 
is nothing wrong, for advocacy of this kind is needed in order to bring 
the facts fairly before the legislature. 

Now both in America and in England it has been found necessary, 
owing to the multitude of bills and the difficulty of discussing them in a 
large body, to refer private bills to committees for investigation ; and the 
legislature has in both countries formed the habit of accepting generally, 
though not invariably, the decisions of a committee upon the bills it has 
dealt with. America has, however, gone farther than England, for Con- 
gress refers all public bills as well as private bills to committees. And 
whereas in England private bills are dealt with by a semi-judicial proce- 
dure, the promoters and opponents appearing by professional agents and 
barristers, in America no such procedure has been created, either in Con- 
gress or in the State legislatures, and private bills are handled much like 
public ones. Moreover, the range of private bills is wider in America 
than in England, in respect that they are used to obtain the satisfaction 
of claims by private persons against the Government, (although there 
exists a Federal Court of Claims, and in some States the State permits 
itself to be sued) whereas in England such claims would either be brought 
before a law-court in the form of a Petition of Right, or, though this rarely 
happens, be urged upon the executive by a motion made in Parliament. 

We see, therefore, that in the United States — 

All business goes before committees, not only private bills but public 
bills, often involving great pecuniary interests. 

To give a bill a fair chance of passing, the committee must be induced 
to report in favour of it. 

The committees have no quasi-judicial rules of procedure, but inquire 
into and amend bills in their uncontrolled discretion, upon such evidence 
or other statements as they choose to admit or use. 

Bills are advocated before committees by persons not belonging to any 
recognized and legally regulated body. 

The committees, both in the State legislatures and in the Federal 
House of Representatives, are largely composed of new men, unused to 
the exercise of the powers entrusted to them. 

It results from the foregoing state of facts that the efforts of the promoters 
and opponents of a bill will be concentrated upon the committee to which 
the bill has been referred ; and that when the interests affected are large 
it will be worth while to employ every possible engine of influence. Such 
influence can be better applied by those who have skill and a tact matured 
by experience ; for it is no easy matter to know how to handle a com- 
mittee collectively and its members individually. Accordingly, a class of 
persons springs up whose profession it is to influence committees for or 
against bills. There is nothing necessarily illegitimate in doing so. As 
Mr. Spofford remarks : — 



THE LOBBY 679 



" What is known as lobbying by no means implies in all cases the use 
of money to affect legislation. This corruption is frequently wholly 
absent in cases where the lobby is most industrious, numerous, persistent, 
and successful. A measure which it is desired to pass into law, for the 
benefit of certain interests represented, may be urged upon members of 
the legislative body in every form of influence except the pecuniary one. 
By casual interviews, by informal conversation, by formal presentation 
of facts and arguments, by printed appeals in pamphlet form, by news- 
paper communications and leading articles, by personal introductions 
from or through men of supposed influence, by dinners, receptions, and 
other entertainments, by the arts of social life and the charms of femi- 
nine attraction, the public man is beset to look favourably upon the 
measure which interested parties seek to have enacted. It continually 
happens that new measures or modifications of old ones are agitated in 
which vast pecuniary interests are involved. The power of the law, 
which when faithfully administered is supreme, may make or unmake 
the fortunes of innumerable corporations, business firms, or individuals. 
Changes in the tariff duties, in the internal revenue taxes, in the bank- 
ing system, in the mining statutes, in the land laws, in the extension of 
patents, in the increase of pensions, in the regulation of mail contracts, in 
the currency of the country, or proposed appropriations for steamship 
subsidies, for railway legislation, for war damages, and for experiments 
in multitudes of other fields of legislation equally or more important, 
come before Congress. It is inevitable that each class of interests 
liable to be affected should seek its own advantage in the result. When 
this is done legitimately, by presentation and proof of facts, by testi- 
mony, by arguments, by printed or personal appeals to the reason and 
sense of justice of members, there can be no objection to it." 1 

Just as a plaintiff in a lawsuit may properly employ an attorney and 
barrister, so a promoter may properly employ a lobbyist, But there is 
plainly a risk of abuse. In legal proceedings, the judge and jury are 
bound to take nothing into account except the law and the facts proved 
in evidence. It would be an obvious breach of duty should a judge 
decide in favour of a plaintiff because he had dined with or been impor- 
tuned by him (as in the parable), or received £50 from him. The judge 
is surrounded by the safeguards, not only of habit but of opinion, which 
would condemn his conduct and cut short his career were he to yield to 
any private motive. The attorney and barrister are each of them also 
members of a recognized profession, and would forfeit its privileges were 
they to be detected in the attempt to employ underhand influence. No 
such safeguards surround either the member of a committee or the lob- 
byist. The former usually comes out of obscurity, and returns to it ; the 
latter does not belong to any disciplined profession. Moreover, the ques- 
tions which the committee has to decide are not questions of law, nor 
always questions of fact, but largely questions of policy, on which rea- 
sonable men need not agree, and as to which it is often impossible to say 

1 Mr. A. R. Spofford (Librarian of Congress) in American Cyclopsediu of 
Political Science, Article "Lobby." 



680 APPENDIX 



that there is a palpably right view or wrong view, because the determin- 
ing considerations will be estimated differently by different minds. 

These dangers in the system of private bill legislation made themselves 
so manifest in England, especially during the great era of railway con- 
struction some fifty years ago, as to have led to the adoption of the 
quasi-judicial procedure described in the Note on Private Bills, and to 
the erection of parliamentary agents into a regularly constituted profes- 
sion, bound by professional rules. Public opinion has fortunately estab- 
lished the doctrine that each member of a private bill committee is to 
be considered as a quasi- judicial person, whose vote neither a brother 
member nor any outsider may attempt to influence, but who is bound to 
decide, as far as he can, in a judicial spirit on the footing of the evi- 
dence tendered. Of course practice is not up to the level of theory in 
Parliament any more than elsewhere ; still there is little solicitation to 
members of committees, and an almost complete absence of even the sus- 
picion of corruption. 

"In the United States," says an experienced American publicist, 
whose opinion I have inquired, " though lobbying is perfectly legitimate 
in theory, yet the secrecy and want of personal responsibility, the con- 
fusion and want of system in the committees, make it rapidly degenerate 
into a process of intrigue, and fall into the hands of the worst men. It is 
so disagreeable and humiliating that all men shrink from it, unless those 
who are stimulated by direct personal interest; and these soon throw 
away all scruples. The most dangerous men are ex-members, who know 
how things are to be managed." 

That this unfavourable view is the prevailing one, appears not merely 
from what one hears in society or reads in the newspapers, though in 
America one must discount a great deal of what rumour asserts regard- 
ing illicit influence, but from the constitutions and statutes of some States, 
which endeavour to repress it. 

What has been said above applies equally to Congress and to the 
State legislatures, and to some extent also to the municipal councils of 
the great cities. All legislative bodies which control important pecuni- 
ary interests are as sure to have a lobby as an army to have its camp- 
followers. Where the body is, there will the vultures be gathered 
together. Great and wealthy States, like New York and Pennsylvania, 
support the largest and most active lobbies. It must, however, be remem- 
bered that although no man of good position would like to be called a 
lobbyist, still such men are often obliged to do the work of lobbying — 
i.e. they must dance attendance on a committee, and endeavour to influ- 
ence its members for the sake of getting their measure through. They 
may have to do this in the interests of the good government of a city, or 
the reform of a charity, no less than for some private end. 

The permanent professional staff of lobbyists at Washington is of course 
from time to time recruited by persons interested in some particular en- 
terprise, who combine with one, two, or more professionals in trying to 
push it through. Thus there arc at Washington, says Mr. Spofford, 
'•pension lobbyists, tariff lobbyists, steamship subsidy lobbyists, railway 



THE LOBBY 681 



lobbyists, Indian ring lobbyists, patent lobbyists, river and harbour 
lobbyists, mining lobbyists, bank lobbyists, mail-contract lobbyists, war 
damages lobbyists, back-pay and bounty lobbyists, Isthmus canal lobby- 
ists, public building lobbyists, State claims lobbyists, cotton-tax lobbyists, 
and French spoliations lobbyists. Of the office-seeking lobbyists at 
Washington it may be said that their name is legion. There are even 
artist lobbyists, bent upon wheedling Congress into buying bad paintings 
and worse sculptures ; and too frequently with success. At times in our 
history there has been a British lobby, with the most genteel accompani- 
ments, devoted to watching legislation affecting the great importing and 
shipping interests." 

A committee whose action can affect the tariff is of course surrounded 
by a strong lobby. 1 I remember to have heard an anecdote of a quinine 
manufacturer, who had kept a lawyer as his agent to "look after" a 
committee during a whole session, and prevent them from touching the 
duty on that drug. On the last day of sitting the agent went home, 
thinking the danger past. As soon as he had gone, the committee sud- 
denly recommended an alteration of the duty, on the impulse of some 
one who had been watching all the time for his opportunity. 

Women are said to be among the most active and successful lobbyists 
at Washington. 

Efforts have been made to check the practice of lobbying, both in 
Congress and in State legislatures. Statutes have been passed severely 
punishing any person who offers any money or value to any member 
with a view to influence his vote. 2 It has been repeatedly held by the 
courts that " contracts which have for their object to influence legislation 
in any other manner than by such open and public presentation of facts, 
arguments, and appeals to reason, as are recognized as proper and legit- 
imate with all public bodies, must be held void." 3 It has also been 

1 The phrase one often hears " there was a strong lobby " (i.e. for or against 
such and such a hill) denotes that the interests and influences represented were 
numerous and powerful. 

2 As to Congress, see § 5450 of Revised Statutes of the United States. The 
provisions of State Statutes are too numerous to mention. See p. 462. Massa- 
chusetts has recently endeavoured by Statute to regulate her State lobby, 
with what success seems still doubtful. 

3 Cooley, Constit. Limit., p. 166. He refers to the observations of Justice 
Chapman, in Frost v. Belmont, 6 Allen, 152: — 

" Though Committees properly dispense with many of the rules which reg- 
ulate hearings before judicial tribunals, yet common fairness requires that 
neither party shall he permitted to have secret consultations and exercise 
secret influences that are kept from the knowledge of the other party. The 
business of ' lobby members ' is not to go fairly and openly before the commit- 
tees and present statements, proofs, and arguments, that the other side has an 
opportunity to meet and refute if they are wrong, but to go secretly to the 
members and ply them with statements and arguments that the other side 
cannot openly meet, however erroneous they maybe, and to bring illegitimate 
influences to bear upon them. If the ' lobby member ' is selected because of 
his political or personal influence, it aggravates the wrong. If his business is 



682 APPENDIX 



suggested that a regular body of attorneys, authorized to act as agents 
before committees of Congress, should be created. A bill for this pur- 
pose was laid before the Senate in January 1875. 



NOTE TO CHAPTER XXVII 

THE FEDERAL SYSTEM OF THE ENGLISH UNIVERSITIES 

The structure of the American Federation may be illustrated by a 
federal system familiar to many Englishmen from its existence in the 
two ancient universities of Oxford and Cambridge, as they stood consti- 
tuted twenty-five years ago. The analogy, which recent legislation has 
rendered less perfect to-day than it was then, appears in four points. 

I. Each of these universities was then for some purposes a federation 
of colleges. Every member of it was also a member of some college or 
hall ; 1 as no one can be an active citizen of the United States who is not a 
citizen of some State. The colleges made up the university as the States 
make up the Union. But the university was and is something distinct 
from the colleges taken together. It has a sphere of its own, laws of its 
own, a government of its own, a revenue and budget of its own. So has 
each of the colleges. Each member has two patriotisms, that of his 
college, that of the university ; just as each American citizen has his 
State patriotism as well as his national patriotism. 

II. The university has a direct and immediate jurisdiction over every 
one of its members, distinct from the jurisdiction exercised by the 
colleges over the same persons. An offender may be punished for certain 
offences by a university tribunal, for certain others by a college tribunal, 
for some by both tribunals. So every citizen lives under the jurisdic- 
tion of the Union as well as under that of his State. 

to unite various interests by means of projects that are called ' log-rolling.' it 
is still worse. The practice of procuring members of the legislature to act 
under the influence of what they have eaten and drunk at houses of entertain- 
ment tends to render those who yield to such influences wholly unfit to act in 
such cases." 

1 By a recent statute of the University of Oxford (which I take for the sake 
of simplicity) , reverting to its earlier constitution before the college monopoly 
had been established, persons have been admitted to be members who are 
not members of any college or hall ; they are, however, treated for some 
purposes as collectively constituting a community similar to a college. They 
might be compared to United States citizens resident in the Territories, were 
it not that the citizen in a Territory enjoys no share in the national govern- 
ment, whereas the Oxford non-collegiate graduate can vote in Convocation 
and Congregation and lor the election of members of Council. 

There is of course this remarkable difference between the two eases I am 
comparing, that in the English universities the university is older than the 
colleges, whereas in America the States are older than the nation. The 
federal character of Oxford dates only from the time of Archbishop Laud. 



CONSTITUTION OF CONFEDERATE STATES 683 



III. The governing authorities of the university are created partly by 
the direct action of its members as graduates, partly by that of the 
colleges as communities. So in America Congress is created partly by 
the citizens as citizens, partly by the States as communities. Before the 
reforms of 1854 the part played by the colleges was much greater than it 
is now, because the Council, which is a sort of Upper House of the 
university legislature, consisted entirely of heads of colleges. 

IV. The university has very little authority over the colleges as corpo- 
rations, and indeed scarcely comes in contact with them all. Under a 
recent statute they are obliged to make certain contributions to the 
university, and to send a copy of their accounts to a university office. But 
they are self-governing ; the university cannot interfere with their inter- 
nal management, nor with the exercise of their jurisdiction over their mem- 
bers, which is their own and not delegated by it. So the States exercise 
an original and not a delegated authority over their citizens, and cannot 
be controlled by the national government in respect of all those numer- 
ous matters as to which the Constitution leaves them free. 



NOTE (A) TO CHAPTER XXX 

CONSTITUTION OF THE CONFEDERATE STATES, 1861-65 

The Constitution adopted 11th March 1861 by the Slave States which 
seceded from the Union and formed the short-lived Southern Confederacy, 
was a reproduction of the Federal Constitution of 1788-89, with certain 
variations interesting because they show the points in which the States' 
Rights party thought the Federal Constitution defective as inadequately 
safeguarding the rights of the several States, and because they embody 
certain other changes which have often been advocated as likely to im- 
prove the working of that instrument. 

The most important of these variations are the following : — 

Art. i. § 2. A provision is inserted permitting the impeachment of a Federal 
officer acting within the limits of any State by a vote of two-thirds of the 
legislature thereof. 

Art. i. § 6. There is added: " Congress may by law grant to the principal 
officer in each of the executive departments, a seat upon the floor of either 
House, with the privilege of discussing any measure appertaining to his 
department." 

Art. i. § 7. The President is permitted to veto any particular item or items 
in an appropriation bill. 

Art. i. § 8. The imposition of protective duties and the granting of bounties 
on industry are forbidden, and the granting of money for internal improve- 
ments is strictly limited. 

Art. i. § 9. Congress is forbidden to appropriate money from the Treasury, 
except by a vote of two-thirds of both Houses, unless it be asked by the head 
of a department and submitted by the President, or be for the payment of its 



684 APPENDIX 



own expenses, or of claims against the Confederacy declared by a judicial 
tribunal to be just. 

Art. ii. § 1. The President and Vice-President are to be elected for six 
years, and the President is not to be re-eligible. 

Art. ii. § 2. The President is given power to remove the highest officials at 
his pleasure, and others for good cause, reporting the removals to the Senate. 

Art. v. The process for amending the Constitution is to be by a Convention 
of all the States, followed by the ratification of two-thirds of the States. 

Of these changes, the third and fifth were obvious improvements ; and 
much may be said in favour of the second, seventh, and eighth. The 
second was a slight approximation towards the Cabinet system of 
England. 1 

I omit the important changes relating to slavery, which was fully pro- 
tected, because these have only a historical interest. 

The working of the Constitution of the Confederate States cannot be 
fairly judged, because it was conducted under the exigencies of a war, 
which necessarily gave it a despotic turn. The executive practically got 
its way. Congress usually sat in secret and " did little beyond register 
laws prepared by the executive, and debate resolutions for the vigorous 
conduct of the war. Outside of the ordinary powers conferred by the 
legislature, the war powers openly or practically exercised by the execu- 
tive were more sweeping and general than those assumed by President 
Lincoln." — (Alexander Johnston in American Cyclopaedia of Political 
Science, Art. " Confederate States.") 



NOTE (B) TO CHAPTER XXX 

THE FEDERAL CONSTITUTION OP CANADA 

The Federal Constitution of the Dominion of Canada is contained in 
the British North America Act 1867, a statute of the British Parliament 
(30 Vict. c. 3).' 2 I note a few of the many points in which it deserves to 
be compared with that of the United States. 

The Federal or Dominion Government is conducted on the so-called 
" Cabinet system " of England, i.e. the Ministry sit in Parliament, and 

1 A singular combination of the Presidential with the Cabinet system may 
be found in the present Constitution of the Hawaiian kingdom, promulgated 
7th July 1887. Framed under the influence of American traditions, it keeps 
the Cabinet, which consists of four ministers, out of the legislature, but having 
an irresponsible hereditary monarch, it is obliged to give the legislature the 
power of dismissing them by a vote of want of confidence. The legislature 
consists of two sets of elective members, Nobles (unpaid), and Representatives 
(paid), who sit and vote together. Two successive legislatures can alter the 
Constitution by certain prescribed majorities: the Constitution is therefore a 
Rigid one. 

2 See also 34 & 35 Vict. c. 28, and 49 and 50 Vict. c. 35. 



THE FEDERAL CONSTITUTION OF CANADA 685 

hold office at the pleasure of the House of Commons. The Governor- 
General is in the position of an irresponsible and permanent executive 
similar to that of the Crown in Great Britain, acting on the advice of 
responsible ministers. He can dissolve Parliament. The Upper House or 
Senate is composed of 78 persons, nominated for life by the Governor- 
General, i.e. the Ministry. The House of Commons has at present 210 
members, who are elected for five years. Both senators and members 
receive salaries. The Senate has very little power or influence. The 
Governor-General has a veto but rarely exercises it, and may reserve a 
bill for the Queen's pleasure. The judges, not only of the Federal or 
Dominion Courts, but also of the Provinces, are appointed by the Crown, 
i.e. by the Dominion Ministry, and hold for good behaviour. 

Each of the Provinces, at present seven in number, has a legislature of 
its own, which, however, consists in Ontario, British Columbia, Manitoba, 
and New Brunswick, of one House only, and a Lieutenant-Governor, ap-. 
pointed by the Dominion Government, with a right of veto on the acts of 
the legislature, which he seldom exercises. Members of the Dominion 
Parliament cannot sit in a Provincial legislature. 

The Governor-General has a right of disallowing acts of a Provincial 
legislature, and sometimes exerts it, especially when a legislature is 
deemed to have exceeded its constitutional competence. 

In each of the Provinces there is a responsible Ministry, working on 
the Cabinet system of England, the Lieutenant-Governor representing the 
Crown and acting as a sort of constitutional sovereign. 

The distribution of matters within the competence of the Dominion 
Parliament and of the Provincial legislatures respectively, bears a general 
resemblance to that existing in the United States ; but there is this 
remarkable distinction, that whereas in the United States, Congress has 
only the powers actually granted to it, the State legislatures retaining all 
such powers as have not been taken from them, the Dominion Parliament 
has a general power of legislation, restricted only by the grant of certain 
specific and exclusive powers to the Provincial legislatures (§§ 91-95). 
Criminal law is reserved for the Dominion Parliament ; and no province 
has the right to maintain a military force. Questions as to the constitu- 
tionality of a statute, whether of the Dominion Parliament or of a Provin- 
cial legislature, come before the courts in the ordinary way, and if appealed, 
before the Judicial Committee of the Privy Council in England. 

The Constitution of the Dominion was never submitted to popular vote, 
and can be altered only by the British Parliament, except as regards cer- 
tain points left to its own legislature. It was drafted by a sort of conven- 
tion in Canada, and enacted en bloc by the British Parliament. There 
exists no power of amending the Provincial constitutions by popular vote 
similar to that which the people of the several States exercise in the United 
States. 



APPENDIX 



NOTE TO CHAPTEE XXXHI 

THE DARTMOUTH COLLEGE CASE 

The famous case of Dartmouth College v. Woodward (4 Wheat. 518) 
decided in 1818, has been so often brought up in European discussions, 
that it seems proper to give a short account of it, taken from an authori- 
tative source, an address by the late Mr. Justice Miller (then senior justice, 
and one of the most eminent members, of the Supreme court), delivered 
before the University of Michigan, June 1887. 

' ' It may well be doubted whether any decision ever delivered by any 
court has had such a pervading operation and influence in controlling legis- 
lation as this. It is founded upon the clause of the Constitution (Art. i. 
§ 10) which declares that no State shall make any law impairing the obli- 
gation of contracts. 

' ' Dartmouth College existed as a corporation under a charter granted 
by the British crown to its trustees in New Hampshire, in the year 1769. 
This charter conferred upon them the entire governing power of the col- 
lege, and among other powers that of filling up all vacancies occurring in 
their own body, and of removing and appointing tutors. It also declared 
that the number of trustees should for ever consist of twelve and no more. 

" After the Revolution, the legislature of New Hampshire passed a law 
to amend the charter, to improve and enlarge the corporation. It increased 
the number of trustees to twenty-one, gave the appointment of the addi- 
tional members to the executive of the State, and created a board of over- 
seers to consist of twenty-five persons, of whom twenty-one were also to 
be appointed by the executive of New Hampshire. These overseers had 
power to inspect and control the most important acts of the trustees. 

"The Supreme court, reversing the decision of the Superior court of 
New Hampshire, held that the original charter constituted a contract 
between the crown, in whom the power was then vested and the trustees 
of the college, which was impaired by the act of the legislature above 
referred to. The opinion, to which there was but one dissent, establishes 
the doctrine that the act of a government, whether it be by a charter of 
the legislature or of the crown, which creates a corporation, is a contract 
between the state and the corporation, and that all the essential franchises, 
powers, and benefits conferred upon the corporation by the charter become, 
when accepted by it, contracts within the meaning of the clause of the 
Constitution referred to. 

" The opinion has been of late years much criticised, as including with 
the class of contracts whose foundation is in the legislative action of the 
States, many which were not properly intended to be so included by the 
framers of the Constitution, and it is undoubtedly true that the Supreme 
court itself has been compelled of late years to insist in this class of cases 
upon the existence of an actual contract by the State with the corpora- 
tion, when relief is sought against subsequent legislation. 

"The main feature of the case, namely that a State can make a con- 



EXTRACTS FKOM CONSTITUTIONS 687 



tract by legislation, as well as in any other way, and that in no such case 
shall a subsequent act of the legislature interpose any effectual barrier to 
its enforcement, where it is enforceable in the ordinary courts of justice, 
has remained. The result of this principle has been to make void in- 
numerable acts of State legislatures, intended in times of disastrous finan- 
cial depression and suffering to protect the people from the hardships of a 
rigid and prompt enforcement of the law in regard to their contracts, and 
to prevent the States from repealing, abrogating, or avoiding by legisla- 
tion contracts fairly entered into with other parties. 

" This decision has stood from the day it was made to the present hour 
as a great bulwark against popular effort through State legislation to evade 
the payment of just debts, the performance of obligatory contracts, and 
the general repudiation of the rights of creditors." 

As here intimated, the broad doctrine laid down in this case has been 
of late years considerably qualified and restricted. It has also become 
the practice for States making contracts by grants to which the principle 
of this decision could apply, to reserve power to vary or annul them, so 
as to leave the hands of the State free. 



NOTE TO CHAPTER XLIX 

Specimens of Provisions in State Constitutions limiting the taxing and 
borrowing powers of State Legislatures and local authorities 

ARKANSAS: Constitution of 1874 

Article XVI. Section 1. Neither the State nor any city, county, 
town, or other municipality in this State shall ever loan its credit for any 
purpose whatever. Nor shall any comity, city, town, or other municipal- 
ity ever issue any interest bearing evidences of indebtedness, except such 
bonds as may be authorized by law to provide for and secure the payment 
of the present existing indebtedness, and the State shall never issue any 
interest-bearing treasury warrants or scrip. 

Section 7. No city, town, or other municipal corporation other than 
provided for in this article, shall levy or collect a larger rate of taxation 
in any one year on the property thereof than one-half of one per centum 
of the value of such property as assessed for State taxation during the 
preceding year. 

COLORADO : Constitution of 1875 

Article XL Section 7. No debt by loan in any form shall be con- 
tracted by any school district for the purpose of erecting and furnishing 
school buildings or purchasing grounds, unless the proposition to create 
such debt shall first be submitted to such qualified electors of the districts 
as shall have paid a school tax therein in the year next preceding such 



688 APPENDIX 



election, and a majority of those voting thereon shall vote in favour of 
incurring such debt. 

Section 8. No city or town shall contract any debt by loan in any 
form, except by means of an ordinance, which shall be irrepealable until 
the indebtedness therein provided for shall have been fully paid or dis- 
charged, specifying the purposes to which the funds to be raised shall be 
applied, and providing for the levy of a tax, not exceeding twelve mills 
on each dollar of valuation of taxable property within such city or town, 
sufficient to pay the annual interest and extinguish the principal of such 
debt within fifteen, but not less than ten years from the creation thereof ; 
and such tax, when collected, shall be applied only to the purposes in 
such ordinance specified until the indebtedness shall be paid or dis- 
charged ; but no such debt shall be created unless the question of incur- 
ring the same shall, at a regular election for councilmen, aldermen, or 
officers of such city or town, be submitted to a vote of such qualified 
electors thereof as shall, in the year next preceding, have paid a property- 
tax therein, and a majority of those voting on the question, by ballot 
deposited in a separate ballot box, shall vote in favour of creating such 
debt ; but the aggregate amount of debt so created, together with the 
debt existing at the time of such election, shall not at any time exceed 
three per cent of the valuation last aforesaid. Debts contracted for 
supplying water to such city or town are excepted from the operation of 
this section. 

ILLINOIS : Constitution of 1870 

Article IX. Section 8. County authorities shall never assess taxes, 
the aggregates of which shall exceed seventy-five cents per one hundred 
dollars valuation, except for the payment of indebtedness existing at the 
adoption of this Constitution, unless authorized by a vote of the people 
of the county. 

Section 12. No county, city, township, school district, or other muni- 
cipal corporation shall be allowed to become indebted in any manner or 
for any purpose to an amount, including existing indebtedness, in the 
aggregate exceeding five per centum on the value of the taxable property 
therein, to be ascertained by the last assessment for the State and county 
taxes previous to the incurring of such indebtedness. 

Any county, city, school district, or other municipal corporation in- 
curring any indebtedness as aforesaid, shall, before or at the time of 
doing so, provide for the collection of a direct annual tax sufficient to 
pay the interest on such debt as it falls due, and also to pay and discharge 
the principal thereof within twenty years from the time of contracting the 
same. 

CALIFORNIA: Constitution of 1879 

Article XI. Section 18. No county, city, town, township, Board of 
Education, or school district shall incur any indebtedness or liability in 
any manner, or for any purpose, exceeding in any year the income and 
revenue provided for it for such year, without the assent of two-thirds of 



EXTRACTS FROM CONSTITUTIONS 



the qualified electors thereof, voting at an election to he held for that pur- 
pose, nor unless, before or at the time of incurring such indebtedness, 
provision shall be made for the collection of an annual tax sufficient to 
pay the interest on such indebtedness as it falls due, and also to consti- 
tute a sinking fund for the payment of the principal thereof within twenty 
years from the time of contracting the same. Any indebtedness or lia- 
bility incurred contrary to this provision shall be void. 

NEW YORK : Constitutional Amendment of 1884 
(to Art. viii. § 11 of Constitution of 1846) 

No county containing a city of over one hundred thousand inhabitants, 
or any such city, shall be allowed to become indebted for any purpose or 
in any manner to an amount which, including existing indebtedness, 
shall exceed ten per centum of the assessed valuation of the real estate of 
such county or city subject to taxation. 

The amount hereafter to be raised by tax for county or city purposes 
in any county containing a city of over one hundred thousand inhabitants, 
or any such city of this State, in addition to providing for the principal 
and interest of existing debt, shall not in the aggregate exceed in any one 
year two per centum of the assessed valuation of the real personal estate 
of such county or city. 



VOL. I 



ARTICLES OF CONFEDERATION, 1781-1788 



Articles of Confederation and Perpetual Union between the States of New 
Hampshire, Massachusetts Bay, Bhode Island and Providence Plan- 
tations, Connecticut, New York, New Jersey, Pennsylvania, Dela- 
ware, Maryland, Virginia, North Carolina, South Carolina, and 
Georgia. 

Article I. The style of this confederacy shall be, " The United States 
of America." 

Art. II. Each State retains its sovereignty, freedom, and indepen- 
dence, and every power, jurisdiction, and right, which is not by this con- 
federation expressly delegated to the United States in Congress assembled. 

Art. III. The said States hereby severally enter into a firm league of 
friendship with each other, for their common defence, the security of 
their liberties, and their mutual and general welfare, binding themselves 
to assist each other against all force offered to, or attacks made upon 
them, or any of them, on account of religion, sovereignty, trade, or any 
other pretence whatever. 

Art. IV. The better to secure and perpetuate mutual friendship and 
intercourse among the people of the different States in this Union, the 
free inhabitants of each of these States, paupers, vagabonds, and fugitives 
from justice excepted, shall be entitled to all privileges and immunities of 
free citizens in the several States ; and the people of each State shall have 
free ingress and regress to and from any other State, and shall enjoy therein 
all the privileges of trade and commerce, subject to the same duties, 
impositions, and restrictions, as the inhabitants thereof respectively ; pro- 
vided that such restrictions shall not extend so far as to prevent the 
removal of property imported into any State, to any other State of which 
the owner is an inhabitant ; provided, also, that no imposition, duties, or 
restriction, shall be laid by any State on the property of the United States, 
or either of them. 

If any person guilty of, or charged with, treason, felony, or other high 
misdemeanour in any State, shall flee from justice, and be found in any 
of the United States, he shall, upon demand of the governor or executive 
power of the State from which he fled, be delivered up. and removed to 
the State having jurisdiction of his offence. 

Full faith and credit shall be given, in each of these States, to the 



ARTICLES OF CONFEDERATION 691 

records, acts, and judicial proceedings of the courts and magistrates of 
every other State. 

Art. V. For the more convenient management of the general inter- 
ests of the United States, delegates shall be annually appointed in such 
manner as the legislature of each State shall direct, to meet in Congress 
on the first Monday in November, in every year, with a power reserved 
to each State to recall its delegates, or any of them, at any time within 
the year, and to send others in their stead for the remainder of the year. 

No State shall be represented in Congress by less than two, nor by 
more than seven members ; and no person shall be capable of being a 
delegate for more than three years, in any term of six years ; nor shall 
any person, being a delegate, be capable of holding any office under the 
United States, for which he, or another for his benefit, receives any salary, 
fees, or emolument of any kind. 

Each State shall maintain its own delegates in any meeting of the 
States, and while they act as members of the committee of the States. 

In determining questions in the United States, in Congress assembled, 
each State shall have one vote. 

Freedom of speech and debate in Congress shall not be impeached or 
questioned in any court or place out of Congress ; and the members of 
Congress shall be protected in their persons from arrests and imprison- 
ments during the time of their going to and from, and attendance on 
Congress, except for treason, felony, or breach of the peace. 

Art. VI. No State, without the consent of the United States, in 
Congress assembled, shall send any embassy to, or receive any embassy 
from, or enter into any conference, agreement, alliance, or treaty, with 
any king, prince, or state ; nor shall any person holding any office of 
profit or trust under the United States, or any of them, accept of any 
present, emolument, office, or title of any kind whatever, from any king, 
prince, or foreign state ; nor shall the United States, in Congress as- 
sembled, or any of them, grant any title of nobility. 

No two or more States shall enter into any treaty, confederation, or 
alliance whatever between them, without the consent of the United 
States, in Congress assembled, specifying accurately the purposes for 
which the same is to be entered into, and how long it shall continue. 

No States shall lay any imposts or duties which may interfere with 
any stipulations in treaties entered into by the United States, in Con- 
gress assembled, with any king, prince, or state, in pursuance of any 
treaties already proposed by Congress to the courts of France and Spain. 

No vessels of war shall be kept up in time of peace by any State, 
except such number only as shall be deemed necessary by the United 
States, in Congress assembled, for the defence of such State or its trade ; 
nor shall any body of forces be kept up by any State, in time of peace, 
except such number only as, in the judgment of the United States, in 
Congress assembled, shall be deemed requisite to garrison the forts nec- 
essary for the defence of such State ; but every State shall always keep 
up a well-regulated and disciplined militia, sufficiently armed and ac- 
coutred, and shall provide and constantly have ready for use, in public 



692 APPENDIX 



stores, a due number of field-pieces and tents, and a proper quantity of 
arms, ammunition, and camp equipage. 

No State shall engage in any war without the consent of the United 
States, in Congress assembled, unless such State be actually invaded by 
enemies, or shall have received certain advice of a resolution being- 
formed by some nation of Indians to invade such State, and the danger 
is so imminent as not to admit of a delay till the United States, in Con- 
gress assembled, can be consulted ; nor shall any State grant commis- 
sions to any ships or vessels of war, nor letters of marque or reprisal, 
except it be after a declaration of war by the United States, in Congress 
assembled, and then only against the kingdom or state, and the subjects 
thereof against which war has been so declared, and under such regula- 
tions as shall be established by the United States, in Congress assembled, 
unless such State be invested by pirates, in which case vessels of war 
may be fitted out for that occasion, and kept so long as the danger shall 
continue, or until the United States, in Congress assembled, shall deter- 
mine otherwise. 

Art. VII. When land forces are raised by any State for the common 
defence, all officers of or under the rank of colonel shall be appointed 
by the legislature of each State respectively by whom such forces shall 
be raised, or in such manner as such State shall direct, and all vacancies 
shall be filled up by the State which first made the appointment. 

Art. VIII. All charges of war, and all other expenses that shall be 
incurred for the common defence or general welfare, and allowed by the 
United States, in Congress assembled, shall be defrayed out of a common 
treasury, which shall be supplied by the several States, in proportion to 
the value of all land within each State, granted to, or surveyed for, any 
person, as such land and the buildings and improvements thereon shall 
be estimated according to such mode as the United States, in Congress 
assembled, shall, from time to time, direct and appoint. The taxes for 
paying that proportion shall be laid and levied by the authority and 
direction of the legislatures of the several States, within the time agreed 
upon by the United States, in Congress assembled. 

Art. IX. The United States, in Congress assembled, shall have the 
sole and exclusive right and power of determining on peace and war, 
except in the cases mentioned in the sixth Article ; of sending and 
receiving ambassadors ; entering into treaties and alliances, provided 
that no treaty of commerce shall be made whereby the legislative power 
of the respective States shall be restrained from imposing such imposts 
and duties on foreigners, as their own people are subjected to, or from 
prohibiting the exportation or importation of any species of goods or 
commodities whatsoever ; of establishing rules for deciding, in all cases, 
what captures on land or water shall be legal, and in what manner prizes 
taken by land or naval forces in the service of the United States shall be 
divided or appropriated ; of granting letters of marque and reprisal in 
times of peace ; appointing courts for the trial of piracies and felonies 
committed on the high seas ; and establishing' courts for receiving and 
determining finally appeals in all cases of capture ; provided that no 



ARTICLES OF CONFEDERATION 693 

member of Congress shall be appointed as judge of any of the said 
courts. 

The United States, in Congress assembled, shall also be the last resort 
on appeal, in all disputes and differences now subsisting, or that hereafter 
may arise between two or more States concerning boundary, jurisdiction, 
or any other cause whatever ; which authority shall always be exercised in 
the manner following : Whenever the legislative or executive authority, or 
lawful agent of any State in controversy with another, shall present a 
petition to Congress, stating the matter in question, and praying for a hear- 
ing, notice thereof shall be given by order of Congress to the legislative or 
executive authority of the other State in controversy, and a day assigned 
for the appearance of the parties by their lawful agents, who shall then be 
directed to appoint, by joint consent, commissioners or judges to consti- 
tute a court for hearing and determining the matter in question ; but if 
they cannot agree, Congress shall name three persons out of each of the 
United States, and from the list of such persons each party shall alter- 
nately strike out one, the petitioners beginning, until the number shall be 
reduced to thirteen ; and from that number not less than seven nor more 
than nine names, as Congress shall direct, shall, in the presence of Con- 
gress, be drawn out by lot ; and the persons whose names shall be so 
drawn, or any five of them, shall be commissioners or judges, to hear and 
finally determine the controversy, so always as a major part of the judges 
who shall hear the cause shall agree in the determination ; and if either 
party shall neglect to attend at the day appointed, without showing rea- 
sons which Congress shall judge sufficient, or being present, shall refuse 
to strike, the Congress shall proceed to nominate three persons out of 
each State, and the secretary of Congress shall strike in behalf of such 
party absent or refusing ; and the judgment and sentence of the court, to 
be appointed in the manner before prescribed, shall be final and conclu- 
sive ; and if any of the parties shall refuse to submit to the authority of 
such court, or to appear or defend their claim or cause, the court shall 
nevertheless proceed to pronounce sentence or judgment, which shall in 
like manner be final and decisive ; the judgment or sentence and other 
proceedings being in either case transmitted to Congress, and lodged 
among the acts of Congress for the security of the parties concerned ; pro- 
vided, that every commissioner, before he sits in judgment, shall take 
an oath, to be administered by one of the judges of the superior court 
of the State where the cause shall be tried, "well and truly to hear 
and determine the matter in question, according to the best of his judg- 
ment, without favour, affection, or hope of reward." Provided, also, 
that no State shall be deprived of territory for the benefit of the. United 
States. 

All controversies concerning the private right of soil claimed under dif- 
ferent grants of two or more States, whose jurisdictions, as they may respect 
such lands, and the States which passed such grants, are adjusted, the said 
grants or either of them being at the same time claimed to have originated 
antecedent to such settlement of jurisdiction, shall, on the petition of 
either party to the Congress of the United States, be finally determined, 



694 APPENDIX 



as near as may be, in the same manner as is before prescribed for decid- 
ing disputes respecting territorial jurisdiction between different States. 

The United States, in Congress assembled, shall also have the sole and 
exclusive right and power of regulating the alloy and value of coin struck 
by their own authority, or by that of the respective States ; fixing the 
standard of weights and measures throughout the United States ; regulat- 
ing the trade and managing all affairs with the Indians not members of 
any of the States ; provided that the legislative right of any State, within 
its own limits, be not infringed or violated ; establishing and regulating 
post-offices from one State to another throughout all the United States, 
and exacting such postage on the papers passing through the same as may 
be required to defray the expenses of the said office ; appointing all officers 
of the land forces in the service of the United States, excepting regimental 
officers ; appointing all the officers of the naval forces, and commissioning 
all officers whatever in the service of the United States ; making rules for 
the government and regulation of the said land and naval forces, and di- 
recting their operations. 

The United States, in Congress assembled, shall have authority to ap- 
point a committee, to sit in the recess of Congress, to be denominated "A 
Committee of the States," and to consist of one delegate from each State ; 
and to appoint such other committees and civil officers as may be necessary 
for managing the general affairs of the United States under their direction ; 
to appoint one of their number to preside, provided that no person be al- 
lowed to serve in the office of president more than one year in any term of 
three years ; to ascertain the necessary sums of money to be raised for 
the service of the United States, and to appropriate and apply the same 
for defraying the public expenses ; to borrow money or emit bills on the 
credit of the United States, transmitting every half year to the respective 
States an account of the sums of money so borrowed or emitted ; to build 
and equip a navy ; to agree upon the number of land forces, and to make 
requisitions from each State for its quota, in proportion to the number of 
white inhabitants in such State, which requisition shall be binding ; and 
thereupon the legislature of each State shall appoint the regimental offi- 
cers, raise the men, and clothe, arm, and equip them in a soldier-like man- 
ner at the expense of the United States ; and the officers and men so 
clothed, armed, and equipped shall inarch to the place appointed, and 
within the time agreed on by the United States, in Congress assembled ; 
but if the United States, in Congress assembled, shall, on consideration of 
circumstances, judge proper that any State should not raise men, or should 
raise a smaller number than its quota, and that any other State should 
raise a greater number of men than the quota thereof, such extra number 
shall be raised, officered, clothed, armed, and equipped in the same manner 
as the quota of such State, unless the legislature of such State shall judge 
that such extra number cannot be safely spared out of the same, in which 
case they shall raise, officer, clothe, arm, and equip as many of such extra 
number as they judge can be safely spared, and the officers and men so 
clothed, armed, and equipped shall march to the place appointed, and 
within the time agreed on by the United States, in Congress assembled. 



ARTICLES OF CONFEDERATION 695 

The United States, in Congress assembled, shall never engage in a war, 
nor grant letters of marque and reprisal in time of peace, nor enter into 
any treaties or alliances, nor coin money, nor regulate the value thereof, 
nor ascertain the sums and expenses necessary for the defence and welfare 
of the United States, or any of them, nor emit hills, nor borrow money 
on the credit of the United States, nor appropriate money nor agree upon 
the number of vessels of war to be built or purchased, or the number of 
land or sea forces to be raised, nor appoint a commander-in-chief of the 
army or navy, unless nine States assent to the same, nor shall a question 
on any other point, except for adjourning from day to day, be determined, 
unless by the votes of a majority of the United States, in Congress as- 
sembled. 

The Congress of the United States shall have power to adjourn to any 
time within the year, and to any place within the United States, so that 
no period of adjournment be for a longer duration than the space of six 
months, and shall publish the journal of their proceedings monthly, 
except such parts thereof relating to treaties, alliances, or military opera- 
tions as in their judgment require secrecy ; and the yeas and nays of the 
delegates of each State on any question, shall be entered on the journal, 
when it is desired by any delegate ; and the delegates of a State, or any 
of them, at his or their request, shall be furnished with a transcript of 
the said journal, except such parts as are above excepted, to lay before 
the legislatures of the several States. 

Art. X. The committee of the States, or any nine of them, shall be 
authorized to execute, in the recess of Congress, such of the powers of 
Congress as the United States, in Congress assembled, by the consent of 
nine States, shall, from time to time, think expedient to vest them with ; 
provided that no power be delegated to the said committee, for the 
exercise of which, by the Articles of Confederation, the voice of nine 
States, in the Congress of the United States assembled, is requisite. 

Art. XI. Canada acceding to this Confederation, and joining in the 
measures of the United States, shall be admitted into, and entitled to all 
the advantages of this Union ; but no other colony shall be admitted into 
the same unless such admission be agreed to by nine States. 

Art. XII. All bills of credit emitted, moneys borrowed, and debts 
contracted by or under the authority of Congress, before the assembling 
of the United States, in pursuance of the present Confederation, shall be 
deemed and considered as a charge against the United States, for payment 
and satisfaction whereof the said United States and the public faith are 
hereby solemnly pledged. 

Art. XIII. Every State shall abide by the determinations of the 
United States, in Congress assembled, on all questions which by this 
Confederation are submitted to them. And the Articles of this Confed- 
eration shall be inviolably observed by every State, and the Union shall 
be perpetual ; nor shall any alteration at any time hereafter be made in 
any of them, unless such alteration be agreed to in a Congress of the 
United States, and be afterwards confirmed by the legislatures of every 
State. 



696 APPENDIX 



And whereas it hath pleased the great Governor of the world to incline 
the hearts of the legislatures we respectively represent in Congress to 
approve of, and to authorize us to ratify the said Articles of Confederation 
and perpetual Union, Know ye, that we, the undersigned delegates, by 
virtue of the power and authority to us given for that purpose, do, by 
these presents, in the name and in behalf of our respective constituents, 
fully and entirely ratify and confirm each and every of the said Articles 
of Confederation and perpetual Union, and all and singular the matters 
and things therein contained. And we do further solemnly plight and 
engage the faith of our respective constituents, that they shall abide by 
the determinations of the United States, in Congress assembled, on all 
questions which by the said Confederation are submitted to them; and 
that the Articles thereof shall be inviolably observed by the States we 
respectively represent, and that the Union shall be perpetual. In witness 
whereof we have hereunto set our hands in Congress. Done at Philadel- 
phia, in the State of Pennsylvania, the ninth day of July, in the year of 
our Lord 1778, and in the third year of the Independence of America. 

[These Articles were not ratified by all the States until 1st March 
1781, when the delegates of Maryland, the latest in ratifying, signed for 
her.] 



CONSTITUTION OF THE UNITED STATES 



We, the people of the United States, in order to form a more perfect 
union, establish justice, insure domestic tranquillity, provide for the 
common defence, promote the general welfare, and secure the blessings 
of liberty to ourselves and our posterity, do ordain and establish this 
Constitution for the United States of America. 

ARTICLE I 

Section 1. All legislative powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate and 
House of Representatives. 

Sec. 2. The House of Representatives shall be composed of members 
chosen every second year by the people of the several States, and the 
electors in each State shall have the qualifications requisite for electors of 
the most numerous branch of the State legislature. 

No person shall be a Representative who shall not have attained to the 
age of twenty-five years, and been seven years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that State in 
which he shall be chosen. 

[Representatives and direct taxes shall be apportioned among the sev- 
eral States which may be included within this Union, according to their 
respective numbers, which shall be determined by adding to the whole 
number of free persons, including those bound to service for a term of 
years, and excluding Indians not taxed, three-fifths of all other persons.] 1 
The actual enumeration shall be made within three years after the first 
meeting of the Congress of the United States, and within every subse- 
quent term of ten years, in such manner as they shall by law direct. The 
number of Representatives shall not exceed one for every thirty thousand, 
but each State shall have at least one Representative ; and until such 
enumeration shall be made, the State of New Hampshire shall be entitled 
to choose three, Massachusetts eight, Rhode Island and Providence Plan- 
tations one, Connecticut five, New York six, New Jersey four, Pennsyl- 
vania eight, Delaware one, Maryland six, Virginia ten, North Carolina 
five, South Carolina five, and Georgia three. 

1 The clause included in brackets is amended by the XlVth Amendment, 
2d section. 

697 



698 APPENDIX 



When vacancies happen in the representation from any State, the ex- 
ecutive authority thereof shall issue writs of election to fill such vacan- 
cies. 

The House of Representatives shall choose their speaker and other 
officers ; and shall have the sole power of impeachment. 

Sec. 3. The Senate of the United States shall be composed of two 
Senators from each State, chosen by the legislature thereof, for six years ; 
and each Senator shall have one vote. 

Immediately after they shall be assembled in consequence of the first 
election, they shall be divided as equally as may be into three classes. 
The seats of the Senators of the first class shall be vacated at the expira- 
tion of the second year, of the second class at the expiration of the fourth 
year, and of the third class at the expiration of the sixth year, so that 
one-third may be chosen every second year ; and if vacancies happen by 
resignation, or otherwise, during the recess of the legislature of any State, 
the executive thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies. 

No person shall be a Senator who shall not have attained to the age of 
thirty years, and been nine years a citizen of the United States, and who 
shall not, when elected, be an inhabitant of that State for which he shall 
be chosen. 

The Vice-President of the United States shall be President of the Sen- 
ate, but shall have no vote, unless they be equally divided. 

The Senate shall choose their other officers, and also a president pro 
tempore, in the absence of the Vice-President, or when he shall exercise 
the office of President of the United States. 

The Senate shall have the sole power to try all impeachments. When 
sitting for that purpose, they shall be on oath or affirmation. When the 
President of the United States is tried, the Chief Justice shall preside ; 
and no person shall be convicted without the concurrence of two-thirds of 
the members present. 

Judgment in cases of impeachment shall not extend farther than to 
removal from office, and disqualification to hold and enjoy any office of 
honour, trust, or profit under the United States ; but the party convicted 
shall nevertheless be liable and subject to indictment, trial, judgment, and 
punishment according to law. 

Sec 4. The times, places, and manner of holding elections for Sena- 
tors and Representatives shall be prescribed in each State by the legisla- 
ture thereof ; but the Congress may at any time by law make or alter 
such regulations, except as to the places of choosing Senators. 

The Congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they shall by 
law appoint a different day. 

Sec. 5. Each house shall be the judge of the elections, returns, and 
qualifications of its own members, and a majority of each shall constitute 
a quorum to do business ; but a smaller number may adjourn from day to 
day, and may be authorized to compel the attendance of absent members, 
in such manner, and under such penalties as each house may provide. 



CONSTITUTION OF THE UNITED STATES 



Each house may determine the rules of its proceedings, punish its 
members for disorderly behaviour, and, with the concurrence of two- 
thirds, expel a member. 

Each house shall keep a journal of its proceedings, and from time to 
time publish the same, excepting such parts as may in their judgment 
require secrecy ; and the yeas and nays of the members of either house 
on any question shall, at the desire of one-fifth of those present, be 
entered on the journal. 

Neither house, during the session of Congress, shall, without the con- 
sent of the other, adjourn for more than three days, nor to any other 
place than that in which the two houses shall be sitting. 

Sec. 6. The Senators and Kepresentatives shall receive a compensa- 
tion for their services, to be ascertained by law, and paid out of the Treas- 
ury of the United States. They shall in all cases, except treason, felony, 
and breach of the peace, be privileged from arrest during their attendance 
at the session of their respective houses, and in going to and returning 
from the same ; and for any speech or debate in either house they shall 
not be questioned in any other place. 

No Senator or Representative shall, during the time for which he was 
elected, be appointed to any civil office under the authority of the United 
States, which shall have been created, or the emoluments whereof shall 
have been increased during such time ; and no person holding any office 
under the United States shall be a member of either house during his 
continuance in office. 

Sec 7. All bills for raising revenue shall originate in the House of 
Representatives ; but the Senate may propose or concur with amend- 
ments as on other bills. 

Every bill which shall have passed the House of Representatives and 
the Senate shall, before it become a law, be presented to the President 
of the United States ; if he approve he shall sign it, but if not he shall 
return it, with his objections, to that house in which it shall have origi- 
nated, who shall enter the objections at large on their journal, and proceed 
to reconsider it. If after such reconsideration two-thirds of that house 
shall agree to pass the bill, it shall be sent, together with the objections, 
to the other house, by which it shall likewise be reconsidered, and if 
approved by two-thirds of that house, it shall become a law. But in all such 
cases the votes of both houses shall be determined by yeas and nays, and 
the names of the persons voting for and against the bill shall be entered 
on the journal of each house respectively. If any bill shall not be 
returned by the President within ten days (Sundays excepted) after it 
shall have been presented to him, the same shall be a law, in like manner 
as if he had signed it, unless the Congress by their adjournment prevent 
its return, in which case it shall not be a law. 

Every order, resolution, or vote to which the concurrence of the Sen- 
ate and House of Representatives may be necessary (except on a ques- 
tion of adjournment) shall be presented to the President of the United 
States ; and before the same shall take effect shall be approved by him, 
or being disapproved by him, shall be repassed by two-thirds of the 



700 APPENDIX 



Senate and House of Representatives, according to the rules and limita- 
tions prescribed in the case of a bill. 

Sec. 8. The Congress shall have power to lay and collect taxes, duties, 
imposts, and excises, to pay the debts and provide for the common defence 
and general welfare of the United States ; but all duties, imposts, and 
excises shall be uniform throughout the United States ; 

To borrow money on the credit of the United States ; 

To regulate commerce with foreign nations, and among the several 
States, and with the Indian tribes ; 

To establish an uniform rule of naturalization, and uniform laws on 
the subject of bankruptcies throughout the United States ; 

To coin money, regulate the value thereof, and of foreign coin, and fix 
the standard of weights and measures ; 

To provide for the punishment of counterfeiting the securities and 
current coin of the United States ; 

To establish post-offices and post-roads. 

To promote the progress of science and useful arts, by securing for 
limited times to authors and inventors the exclusive right to their respec- 
tive writings and discoveries ; 

To constitute tribunals inferior to the Supreme Court ; 

To define and punish piracies and felonies committed on the high seas, 
and offences against the law of nations. 

To declare war, grant letters of marque and reprisal, and make rules 
concerning captures on land and water ; 

To raise and support armies, but no appropriation of money to that 
use shall be for a longer term than two years ; 

To provide and maintain a navy ; 

To make rules for the government and regulation of the land and naval 
forces ; 

To provide for calling forth the militia to execute the laws of the 
Union, suppress insurrections, and repel invasions ; 

To provide for organizing, arming, and disciplining the militia, and for 
governing such part of them as may be employed in the service of the 
United States, reserving to the States respectively the appointment of the 
officers and the authority of training the militia according to the disci- 
pline prescribed by Congress ; 

To exercise exclusive legislation in all cases whatsoever, over such dis- 
trict (not exceeding ten miles square) as may, by cession of particular 
States, and the acceptance of Congress, become the seat of the Govern- 
ment of the United States, and to exercise like authority over all places 
purchased by the consent of the legislature of the State in which the 
same shall be, for the erection of forts, magazines, arsenals, dockyards, 
and other needful buildings ; and 

To make all laws which shall be necessary and proper for carrying into 
execution the -foregoing powers, and all other powers vested by this Con- 
stitution in the Government of the United States, or in any department 
or officer thereof. 

Sec. 9. The migration or importation of such persons as any of the 



CONSTITUTION OF THE UNITED STATES 701 



States now existing shall think proper to admit, shall not be prohibited by 
the Congress prior to the year one thousand eight hundred and eight, but 
a tax or duty may be imposed on such importation, not exceeding ten 
dollars for each person. 

The privilege of the writ of habeas corpus shall not be suspended, un- 
less when in cases of rebellion or invasion the public safety may re- 
quire it. 

No bill of attainder or ex post facto law shall be passed. 

No capitation, or other direct tax, shall be laid, unless in proportion 
to the census or enumeration hereinbefore directed to be taken. 

No tax or duty shall be laid on articles exported from any State. 

No preference shall be given by any regulation of commerce or revenue 
to the ports of one State over those of another ; nor shall vessels bound 
to, or from, one State be obliged to enter, clear, or pay duties in an- 
other. 

No money shall be drawn from the Treasury, but in consequence of 
appropriations made by law ; and a regular statement and account of the 
receipts and expenditures of all public money shall be published from 
time to time. 

No title of nobility shall be granted by the United States ; and no per- 
son holding any office of profit or trust under them shall, without the con- 
sent of the Congress, accept of any present, emolument, office, or title, 
of any kind whatever, from any king, prince, or foreign state. 

Sec. 10. No state shall enter into any treaty, alliance, or confedera- 
tion ; grant letters of marque and reprisal ; coin money ; emit bills of 
credit ; make anything but gold and silver coin a tender in payment of 
debts ; pass any bill of attainder, ex post facto law, or law impairing the 
obligation of contracts, or grant any title of nobility. 

No State shall, without the consent of the Congress, lay any imposts or 
duties on imports or exports, except what may be absolutely necessary 
for executing its inspection laws ; and the net produce of all duties and 
imposts, laid by any State on imports or exports, shall be for the use of 
the Treasury of the United States ; and all such laws shall be subject to 
the revision and control of the Congress. 

No State shall, without the consent of Congress, lay any duty of ton- 
nage, keep troops or ships of war in time of peace, enter into any 
agreement or compact with another State, or with a foreign power, or en- 
gage in war, unless actually invaded, or in such imminent danger as will 
not admit of delay. 

ARTICLE II 

Section 1. The executive power shall be vested in a President of the 
United States of America. He shall hold his office during the term of 
four years, and together with the Vice-President, chosen for the same 
term, be elected as follows : 

Each State shall appoint, in such manner as the legislature thereof may 
direct, a number of electors, equal to the whole number of Senators and 
"Representatives to which the State may be entitled in the Congress ; but 



702 APPENDIX 



no Senator or Representative, or person holding an office of trust or profit 
under the United States, shall he appointed an elector. 

[The electors shall meet in their respective States, and vote hy hallot 
for two persons, of whom one at least shall not he an inhabitant of the 
same State with themselves. And they shall make a list of all the per- 
sons voted for, and of the number of votes for each ; which list they shall 
sign and certify, and transmit sealed to the seat of the Government of the 
United States directed to the President of the Senate. The President of 
the Senate shall, in the presence of the Senate and House of Represen- 
tatives, open all the certificates, and the votes shall then be counted. 
The person having the greatest number of votes shall be the President, 
if such number be a majority of the whole number of electors appointed ; 
and if there be more than one who have such majority and have an equal 
number of votes, then the House of Representatives shall immediately 
choose by ballot one of them for President ; and if no person have a 
majority, then from the five highest on the list the said House shall in like 
manner choose the President. But in choosing the President, the votes 
shall be taken by States, the representation from each State having one' 
vote ; a quorum for this purpose shall consist of a member or members 
from two-thirds of the States, and a majority of all the States shall be 
necessary to a choice. In every case, after the choice of the President, 
the person having the greatest number of votes of the electors shall be 
the Vice-President ; but if there should remain two or more who have 
equal votes, the Senate shall choose from them, by ballot, the Vice- 
President.] 1 

The Congress may determine the time of choosing the electors, and 
the day on which they shall give their votes ; which day shall be the 
same throughout the United States. 

No person except a natural-born citizen, or a citizen of the United 
States at the time of the adoption of this Constitution, shall be eligible to 
the office of President ; neither shall any person be eligible to that office 
who shall not have attained to the age of thirty-five years, and been four- 
teen years a resident within the United States. 

In case of the removal of the President from office, or of his death, 
resignation, or inability to discharge the powers and duties of the said 
office, the same shall devolve on the Vice-President, and the Congress 
may by law provide for the case of removal, death, resignation, or ina- 
bility, both of the President and Vice-President, declaring what officer 
shall then act as President, and such officer shall act accordingly until 
the disability be removed, or a President shall be elected. 

The President shall, at stated times, receive for his services a compen- 
sation, which shall neither be increased nor diminished during the period 
for which he shall have been elected, and he shall not receive within that 
period any other emolument from the United States, or any of them. 

Before he enter on the execution of his office, he shall take the follow- 
ing oath or affirmation : 

1 This clause in brackets has been superseded by the Xllih Amendment. 



CONSTITUTION OF THE UNITED STATES 703 

" I do solemnly swear (or affirm) that I will faithfully execute the office 
of President of the United States, and will, to the best of my ability, pre- 
serve, protect, and defend the Constitution of the United States." 

Sec. 2. The President shall be commander-in-chief of the army and 
navy of the United States, and of the militia of the several States, when 
called into the actual service of the United States ; he may require the 
opinion, in writing, of the principal officer in each of the executive depart- 
ments, upon any subject relating to the duties of their respective offices, 
and he shall have power to grant reprieves and pardons for offences 
against the United States, except in cases of impeachment. 

He shall have power, by and with the advice and consent of the Senate, 
to make treaties, provided two-thirds of the Senators present concur ; and 
he shall nominate, and by and with the advice and consent of the Senate, 
shall appoint ambassadors, other public ministers and consuls, judges of 
the Supreme Court, and all other officers of the United States, whose 
appointments are not herein otherwise provided for, and which shall be 
established by law ; but the Congress may by law vest the appointment 
of such inferior officers, as they think proper, in the President alone, in 
the courts of law, or in the heads of departments. 

The President shall have power to fill up all vacancies that may happen 
during the recess of the Senate, by granting commissions which shall 
expire at the end of their next session. 

Sec. 3. He shall from time to time give to the Congress information of 
the state of the Union, and recommend to their consideration such meas- 
ures as he shall judge necessary and expedient ; he may, on extraordinary 
occasions, convene both houses, or either of them, and in case of disagree- 
ment between them, with respect to the time of adjournment, he may 
adjourn them to such time as he shall think proper ; he shall receive 
ambassadors and other public ministers ; he shall take care that the laws 
be faithfully executed, and shall commission all the officers of the United 
States. 

Sec. 4. The President, Vice-President, and all civil officers of the 
United States, shall be removed from office on impeachment for, and con- 
viction of, treason, bribery, or other high crimes and misdemeanours. 

AETICLE III 

Section 1. The judicial power of the United States shall be vested in 
one Supreme Court, and in such inferior courts as the Congress may from 
time to time ordain and establish. The judges, both of the Supreme and 
inferior courts, shall hold their offices during good behaviour, and shall, at 
stated times, receive for their services a compensation, which shall not be 
diminished during their continuance in office. 

Sec 2. The judicial power shall extend to all cases, in law and equity, 
arising under this Constitution, the laws of the United States, and treaties 
made, or which shall be made, under their authority ; to all cases affecting 
ambassadors, other public ministers, and consuls ; to all cases of admiralty 
and maritime jurisdiction; to controversies to which the United States 



704 APPENDIX 



shall be a party ; to controversies between two or more States ; between 
a State and citizens of another State ; between citizens of different States 
— between citizens of the same State claiming lands under grants of dif- 
ferent States, and between a State, or the citizens thereof, and foreign 
states, citizens, or subjects. 

In all cases affecting ambassadors, other public ministers and consuls, 
and those in which a State shall be party, the Supreme Court shall have 
original jurisdiction. In all the other cases before mentioned, the Supreme 
Court shall have appellate jurisdiction, both as to law and fact, with such 
exceptions, and under such regulations as the Congress shall make. 

The trial of all crimes, except in cases of impeachment, shall be by 
jury ; and such trial shall be held in the State where the said crimes shall 
have been committed; but when not committed within any State, the trial 
shall be at such place or places as the Congress may by law have directed. 

Sec 3. Treason against the United States shall consist only in levying 
war against them, or in adhering to their enemies, giving them aid and 
comfort. No person shall be convicted of treason unless on the testimony 
of two witnesses to the same overt act, or on confession in open court. 

The Congress shall have power to declare the punishment of treason, 
but no attainder of treason shall work corruption of blood, or forfeiture 
except during the life of the person attainted. 

ARTICLE IV 

Section 1. Full faith and credit shall be given in each State to the 
public acts, records, and judicial proceedings of every other State. And 
the Congress may by general laws prescribe the manner in which such 
acts, records, and proceedings shall be proved, and the effect thereof. 

Sec 2. The citizens of each State shall be entitled to all privileges and 
immunities of citizens in the several States. 

A person charged in any State with treason, felony, or other crime, who 
shall flee from justice and be found in another State, shall, on demand of 
the executive authority of the State from which he fled, be delivered up, 
to be removed to the State having jurisdiction of the crime. 

No person held to service or labour in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law or regu- 
lation therein, be discharged from such service or labour, but shall be 
delivered up on claim of the party to whom such service or labour may be 
due. 

Sec 3. New States may be admitted by the Congress into this Union ; 
but no new State shall be formed or erected within the jurisdiction of any 
other State ; nor any State be formed by the junction of two or more 
States, or parts of States, without the consent of the legislatures of the 
States concerned as well as of the Congress. 

The Congress shall have power to dispose of and make all needful rules 
and regulations respecting the territory or other property belonging to the 
United States; and nothing in this Constitution shall be so construed as 
to prejudice any claims of the United States, or of any particular State. 



CONSTITUTION OF THE UNITED STATES 705 

Sec. 4. The United States shall guarantee to every State in this 
Union a republican form of government, and shall protect each of them 
against invasion ; and on application of the legislature, or of the execu- 
tive (when the legislature cannot be convened), against domestic violence. 

AETICLE V 

The Congress, whenever two-thirds of both houses shall deem it neces- 
sary, shall propose amendments to this Constitution, or on the applica- 
tion of the legislatures of two-third« of the several States, shall call 
a convention for proposing amendments, which, in either case, shall 
be valid, to all intents and purposes, as part of this Constitution, when 
ratified by the legislatures of three-fourths of the several States, or by con- 
ventions in three-fourths thereof, as the one or the other mode of ratifica- 
tion may be proposed by the Congress ; provided that no amendment 
which may be made prior to the year one thousand eight hundred and 
eight shall in any manner affect the first and fourth clauses in the ninth 
section of the first article ; and that no State, without its consent, shall 
be deprived of its equal suffrage in the Senate. 

AETICLE VI 

All debts contracted and engagements entered into, before the adop- 
tion of this Constitution, shall be as valid against the United States under 
this Constitution as under the Confederation. 

This Constitution, and the laws of the United States which shall be 
made in pursuance thereof, and all treaties made, or which shall be 
made, under the authority of the United States, shall be the supreme 
law of the land ; and the judges in every State shall be bound thereby, 
any thing in the constitution or laws of any State to the contrary notwith- 
standing. 

The Senators and Representatives before mentioned, and the members 
of the several State legislatures, and all executive and judicial officers, 
both of the United States and of the several States, shall be bound by 
oath or affirmation to support this Constitution; but no religious test 
shall ever be required as a qualification to any office or public trust under 
the United States. 

ARTICLE VII 

The ratification of the conventions of nine States shall be sufficient 
for the establishment of this Constitution between the States so ratifying 
the same. 

Done in Convention by the unanimous consent of the States present, 1 

1 Rhode Island was not represented. Several of the delegates had left the 
Convention before it concluded its labours, and some others who remained 
refused to sign. In all, 65 delegates had been appointed, 55 attended, 39 signed. 

The first ratification was that of Delaware, Dec. 7, 1787 ; the ninth (bring- 
ing the Constitution into force) that of New Hampshire, June 21,1788; the 
last, that of Rhode Island, May 29, 1790. 

VOL. I 2 z 



706 APPENDIX 

the Seventeenth day of September, in the year of our Lord 1787, and of 
the Independence of the United States of America the Twelfth. 
In Witness whereof we have hereunto subscribed our names. 

Go Washington, 
Presidt. and Deputy from Virginia. 

New Hampshire — John Langdon, Nicholas Gilman. Massachusetts 

— Nathaniel Gorham, Rufus King. Connecticut — Wm. Saml. John- 
son, Roger Sherman. New York — Alexander Hamilton. New Jersey 

— Wil. Livingston, Wm. Paterson, David Brearley, Jona. Dayton. 
Pennsylvania — B. Franklin, Thos. Fitzsimons, Thomas Mifflin, Jared 
Ingersoll, Robt. Morris, James Wilson, Geo. Clymer, Gouv. Morris. 
Delaware — Geo. Read, Richard Bassett, Gunning Bedford, Jun., Jaco. 
Broom, John Dickinson. Maryland — James M' Henry, Dan. Carroll, 
Dan. Jenifer, of St. Thomas. Virginia — John Blair, James Madison, 
Jun. North Carolina — Wm. Blount, Hugh Williamson, Rich'd Dobbs 
Spaight. South Carolina — J. Rutledge, Charles Pinckney, Charles 
Cotesworth Pinckney, Pierce Butler. Georgia — William Few, Abr. 
Baldwin. 

Attest : William Jackson, Secretary 



Articles in addition to, and amendment of, the Constitution of the United 
Slates of America, proposed by Congress, and ratified by the Legis- 
latures of the several States, pursuant to the fifth Article of the origi- 
nal Constitution. 

ARTICLE I 1 

Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof ; or abridging the freedom of speech 
or of the press ; or the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances. 

ARTICLE II 

A well-regulated militia being necessary to the security of a free state, 
the right of the people to keep and bear arms shall not be infringed. 

ARTICLE III 

No soldier shall, in time of peace, be quartered in any house, without 
the consent of the owner, nor in the time of war, but in a manner to be 
prescribed by law. 

ARTICLE IV 

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be vio- 

1 Amendments I-X inclusive were proposed by Congress to the Legislatures 
of the States, Sept. 25, 1789, and ratified 1780-91. 



CONSTITUTION OF THE UNITED STATES 707 

lated, and no warrants shall issue, but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be searched, 
and the persons or things to be seized. 

ARTICLE V 

No person shall be held to answer for a capital, or otherwise infamous 
crime, unless on a presentment or indictment of a grand jury, except in 
cases arising in the land or naval forces, or in the militia, when in actual 
service in time of war or public danger ; nor shall any person be subject 
for the same offence to be twice put in jeopardy of life or limb ; nor shall 
be compelled in any criminal case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process of law ; nor 
shall private property be taken for public use, without just compensation. 



ARTICLE VI 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall have 
been previously ascertained by law, and to be informed of the nature 
and cause of the accusation ; to be confronted with the witnesses against 
him ; to have compulsory process for obtaining witnesses in his favour, 
and to have the assistance of counsel for his defence. 



ARTICLE VII 

In suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved, and no fact 
tried by a jury shall be otherwise re-examined in any court of the United 
States than according to the rules of the common law. 

ARTICLE VIII 

Excessive bail shall not be required, nor excessive fines imposed, nor 
cruel and unusual punishments inflicted. 

ARTICLE IX 

The enumeration in the Constitution, of certain rights, shall not be 
construed to deny or disparage others retained by the people. 



ARTICLE X 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or 
to the people. 



708 APPENDIX 



ARTICLE XIi 

The judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted against one 
of the United States by citizens of another State, or by citizens or subjects 
of any foreign State. 

ARTICLE XII 2 

The electors shall meet in their respective States, and vote by ballot 
for President and Vice-President, one of whom at least shall not be an 
inhabitant of the same State with themselves ; they shall name in their 
ballots the person voted for as President, and in distinct ballots the per- 
son voted for as Vice-President, and they shall make distinct lists of all 
persons voted for as President, and of all persons voted for as Vice-Presi- 
dent, and of the number of votes for each, which lists they shall sign and 
certify, and transmit sealed to the seat of the Government of the United 
States, directed to the President of the Senate ; — The President of the 
Senate shall, in the presence of the Senate and House of Representatives, 
open all the certificates, and the votes shall then be counted ; — The per- 
son having the greatest number of votes for President shall be the Presi- 
dent, if such number be a majority of the whole number of electors 
appointed ; and if no person have such majority, then from the persons 
having the highest numbers not exceeding three on the list of those voted 
for as President, the House of Representatives shall choose immediately, 
by ballot, the President. But in choosing the President, the votes shall 
be taken by States, the representation from each State having one vote ; 
a quorum for this purpose shall consist of a member or members from 
two-thirds of the States, and a majority of all the States shall be neces- 
sary to a choice. And if the House of Representatives shall not choose a 
President whenever the right of choice shall devolve upon them, before 
the fourth day of March next following, then the Vice-President shall act 
as President, as in the case of the death or other constitutional disability 
of the President. 

The person having the greatest number of votes as Vice-President shall 
be the Vice-President, if such number be a majority of the whole number 
of electors appointed, and if no person have a majority, then from the two 
highest numbers on the list the Senate shall choose the Vice-President ; 
a quorum for the purpose shall consist of two-thirds of the whole number 
of Senators, and a majority of the whole number shall be necessary to a 
choice. But no person constitutionally ineligible to the office of President 
shall be eligible to that of Vice-President of the United States. 

1 Amendt. XI was proposed by Congress Sept. 5, 1794. and declared to have 
been ratified by the legislatures of three-fourths of the States, Jan. 8, 1798. 

2 Amendt. XII was proposed by Congress Dec. 12, 1803, and declared to have 
been ratified Sept. 25, 1804. 



CONSTITUTION OF THE UNITED STATES 709 



AETICLE XIII 1 

Section 1. Neither slavery nor involuntary servitude, except as a 
punishment for crime whereof the party shall have been duly convicted, 
shall exist within the United States, or any place subject to their juris- 
diction. 

Sec 2. Congress shall have power to enforce this article by appropriate 
legislation. 

ARTICLE XIV 2 

Section 1. All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United States and of 
the State wherein they reside. No State shall make or enforce any law 
which shall abridge the privileges or immunities of citizens of the United 
States ; nor shall any State deprive any person of life, liberty, or property, 
without due process of law ; nor deny to any person within its jurisdic- 
tion the equal protection of the laws. 

Sec. 2. Representatives shall be apportioned among the several States 
according to their respective numbers, counting the whole number of 
persons in each State, excluding Indians not taxed. But when the right 
to vote at any election for the choice of electors for President and Vice- 
President of the United States, Representatives in Congress, the executive 
and judicial officers of a State, or the members of the legislature thereof, 
is denied to any of the male inhabitants of such State, being twenty-one 
years of age, and citizens of the United States, or in any way abridged, 
except for participation in rebellion, or other crime, the basis of representa- 
tion therein shall be reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male citizens twenty-one 
years of age in such State. 

Sec 3. No person shall be a Senator or Representative in Congress, or 
elector of President and Vice-President, or hold any office, civil or mili- 
tary, under the United States, or under any State, who, having previously 
taken an oath, as a member of Congress, or as an officer of the United 
States, or as a member of any State legislature, or as an executive or judi- 
cial officer of any State, to support the Constitution of the United States, 
shall have engaged in insurrection or rebellion against the same, or given 
aid or comfort to the enemies thereof. But Congress may, by a vote of 
two-thirds of each House, remove such disability. 

Sec 4. The validity of the public debt of the United States, authorized 
by law, including debts incurred for payment of pensions and bounties for 
services in suppressing insurrection or rebellion, shall not be questioned. 
But neither the United States nor any State shall assume or pay any 
debt or obligation incurred in aid of insurrection or rebellion against the 

i Amendt. XIII was proposed by Congress Feb. 1, 1865, and declared to 
have been ratified by 27 of the 36 States, Dec. 18, 1865. 

a Amendt. XIV was proposed by Congress June 16, 1866, and declared to 
have been ratified by 30 of the 36 States, July 28, 1868. 



710 APPENDIX 



United States, or any claim for the loss or emancipation of any slave ; 
but all such debts, obligations, and claims shall be held illegal and void. 
Sec. 5. The Congress shall have power to enforce, by appropriate 
legislation, the provisions of this article. 



AKTICLE XV 1 

Section 1. The right of citizens of the United States to vote shall not 
be denied or abridged by the United States or by any State on account 
of race, colour, or previous condition of servitude. 

Sec 2. The Congress shall have power to enforce this article by appro- 
priate legislation. 

1 Amendt. XV was proposed by Congress Feb. 26, 1869, and declared to have 
been ratified by 29 of the 37 States, March 30, 1870. 



EXTRACTS FROM THE CONSTITUTION OF THE 
STATE OF CALIFORNIA 1 



Adopted in Convention at Sacramento, March 3, a.d. 1879 ; submitted to 
and ratified by the People, May 7, 1879. 



PREAMBLE AND DECLARATION OF RIGHTS 



PREAMBLE 

We, the people of the State of California, grateful to Almighty God for 
our freedom, in order to secure and perpetuate its blessings, do establish 
this Constitution. 

ARTICLE I 

DECLARATION OP RIGHTS 

Section 1. All men are by nature free and independent, and have 
certain inalienable rights, among which are those of enjoying and de- 
fending life and liberty ; acquiring, possessing, and protecting property ; 
and pursuing and obtaining safety and happiness. 

Sec 2. All political power is inherent in the people. Government is 
instituted for the protection, security, and benefit of the people, and they 
have the right to alter or reform the same whenever the public good may 
require it. 

Sec 3. The State of California is an inseparable part of the American 
Union, and the Constitution of the United States is the supreme law of 
the land. 

Sec 4. The free exercise and enjoyment of religious profession and 
worship, without discrimination or preference, shall for ever be guaranteed 
in this State ; and no person shall be rendered incompetent to be a wit- 
ness or juror on account of his opinions on matters of religious belief ; but 
the liberty of conscience hereby secured shall not be so construed as to 
excuse acts of licentiousness, or justify practices inconsistent with the 
peace or the safety of the State. 

1 1 take these extracts (being unable to find space for the whole document) 
from the official edition of 1887, which contains a few amendments made since 
1879. 

711 



712 APPENDIX 



Sec. 5. The privilege of the writ of habeas corpus shall not be sus- 
pended unless when, in case of rebellion or invasion, the public safety 
may require the suspension. 

Sec 6. All persons shall be bailable by sufficient sureties unless for 
capital offences when the proof is evident or the presumption great. Ex- 
cessive bail shall not be required, nor excessive fines imposed ; nor shall 
cruel or unusual punishment be inflicted. Witnesses shall not be unrea- 
sonably detained, nor confined in any room where criminals are actually 
imprisoned. 

Sec 7. The right of trial by jury shall be secured to all, and remain 
inviolate ; but in civil actions three-fourths of the jury may render a ver- 
dict. A trial by jury may be waived in all criminal cases, not amounting 
to felony, by the consent of both parties, expressed in open Court, and in 
civil actions by the consent of the parties, signified in such manner as may 
be prescribed by law. In civil actions, and cases of misdemeanour, the jury 
may consist of twelve, or of any number less than twelve upon which the 
parties may agree in open Court. 

Sec. 8. Offences heretofore required to be prosecuted by indictment 
shall be prosecuted by information, after examination and commitment 
by a magistrate, or by indictment, with or without such examination and 
commitment, as may be prescribed by law. A grand jury shall be drawn 
and summoned at least once a year in each county. 

Sec 9. Every citizen may freely speak, write, and publish his senti- 
ments on all subjects, being responsible for the abuse of that right ; and 
no law shall be passed to restrain or abridge the liberty of speech or of 
the press. In all criminal prosecutions for libels, the truth may be given 
in evidence to the jury ; and if it shall appear to the jury that the matter 
charged as libellous is true, and was published with good motives, and for 
justifiable ends, the party shall be acquitted ; and the jury shall have the 
right to determine the law and the fact. Indictments found, or informa- 
tions laid, for publication in newspapers, shall be tried in the county where 
such newspapers have their publication office, or in the county where the 
party alleged to be libelled resided at the time of the alleged publication, 
unless the place of trial shall be changed for good cause. 

Sec 10. The people shall have the right to freely assemble together to 
consult for the common good, to instruct their representatives, and to 
petition the Legislature for redress of grievances. 

Sec 11. All laws of a general nature shall have a uniform operation. 

Sec 12. The military shall be subordinate to the civil power. No 
standing army shall be kept up by this State in time of peace, and no 
soldier shall, in time of peace, be quartered in any house without the con- 
sent of the owner ; nor in time of war, except in the manner prescribed 
by law. 

Sec 13. In criminal prosecutions, in any court whatever, the party 
accused shall have the right to a speedy and public trial ; to have the 
process of the Court to compel the attendance of witnesses in his behalf, 
and to appear and defend, in person and with counsel. No person shall 
be twice put in jeopardy for the same offence ; nor be compelled, in any 



THE CONSTITUTION OF CALIFORNIA 713 

criminal case, to be a witness against himself ; nor be deprived of life, 
liberty, or property without due process of law. The Legislature shall 
have power to provide for the taking, in the presence of the party accused 
and his counsel, of depositions of witnesses in criminal cases, other than 
cases of homicide, when there is reason to believe that the witness, from 
inability or other causes, will not attend at the trial. 

Sec. 14. Private property shall not be taken or damaged for public use 
without just compensation having been first made to, or paid into Court 
for, the owner, and no right of way shall be appropriated to the use of 
any corporation other than municipal until full compensation therefor be 
first made in money or ascertained and paid into Court for the owner, 
irrespective of any benefit from any improvement proposed by such cor- 
poration, which compensation shall be ascertained by a jury, unless a jury 
be waived, as in other civil cases in a Court of record, as shall be pre- 
scribed by law. 

Sec. 15. No person shall be imprisoned for debt in any civil action, on 
mesne or final process, unless in case of fraud, nor in civil actions for 
torts, except in cases of wilful injury to person or property ; and no per- 
son shall be imprisoned for a militia fine in time of peace. 

Sec 16. No bill of attainder, ex post facto law, or law impairing the 
obligations of contracts, shall ever be passed. 

Sec 17. Foreigners of the white race or of African descent, eligible to 
become citizens of the United States under the naturalization laws there- 
of, while bona fide residents of this State, shall have the same rights in 
respect to the acquisition, possession, enjoyment, transmission, and in- 
heritance of property as native born citizens. 

Sec 18. Neither slavery nor involuntary servitude, unless for the pun- 
ishment of crime, shall ever be tolerated in this State. 

Sec 19. The right of the people to be secured in their persons, houses, 
papers, and effects, against unreasonable seizures and searches, shall not 
be violated ; and no warrant shall issue, but on probable, cause, supported 
by oath or affirmation, particularly describing the place to be searched 
and the persons and things to be seized. 

Sec 20. Treason against the State shall consist only in levying war 
against it, adhering to its enemies, or giving them aid and comfort. No 
person shall be convicted of treason unless on the evidence of two wit- 
nesses to the same overt act, or confession in open Court. 

Sec 21. No special privileges or immunities shall ever be granted 
which may not be altered, revoked, or repealed by the Legislature, nor 
shall any citizen, or class of citizens, be granted privileges or immunities 
which, upon the same terms, shall not be granted to all citizens. 

Sec 22. The provisions of this Constitution are mandatory and pro- 
hibitory, unless by express words they are declared to be otherwise. 

Sec 23. This enumeration of rights shall not be construed to impair 
or deny others retained by the people. 

Sec 24. No property qualification shall ever be required for any person 
to vote or hold office. 



714 APPENDIX 



ARTICLE IV 

LEGISLATIVE DEPARTMENT 

Sec. 25. The Legislature shall not pass local or special laws in any of 
the following enumerated cases, that is to say : — 

First — Regulating the jurisdiction and duties of Justices of the Peace, 
Police Judges, and of Constables. 

Second — Eor the punishment of crimes and misdemeanours. 

Third — Regulating the practice of courts of justice. 

Fourth — Providing for changing the venue in civil or criminal actions. 

Fifth — Granting divorces. 

Sixth — Changing the names of persons or places. 

Seventh — Authorizing the laying out, opening, altering, maintaining, 
or vacating roads, highways, streets, alleys, town plots, parks, cemeteries, 
graveyards, or public grounds not owned by the State. 

Eighth — Summoning and impanelling grand and petit juries, and pro- 
viding for their compensation. 

Ninth — Regulating county and township business, or the election of 
county or township officers. 

Tenth — Por the assessment or collection of taxes. 

Eleventh — Providing for conducting elections, or designating the places 
of voting, except on the organization of new counties. 

Twelfth — Affecting estates of deceased persons, minors, or other per- 
sons under legal disabilities. 

Thirteenth — Extending the time for the collection of taxes. 

Fourteenth — Giving effect to invalid deeds, wills, or other instru- 
ments. 

Fifteenth — Refunding money paid into the State Treasury. 

Sixteenth — Releasing, or extinguishing, in whole or in part, the in- 
debtedness, liability, or obligation of any corporation or person to this 
State, or to any municipal corporation therein. 

Seventeenth — Declaring any person of age, or authorizing any minor 
to sell, lease, or encumber his or her property. 

Eighteenth — Legalizing, except as against the State, the unauthorized 
or invalid act of any officer. 

Nineteenth — Granting to any corporation, association, or individual 
any special or exclusive right, privilege, or immunity. 

Twentieth — Exempting property from taxation. 

Twenty-first — Changing county seats. 

Twenty -second — Restoring to citizenship persons convicted of infa- 
mous crimes. 

Twenty-third — Regulating the rate of interest on money. 

Twenty-fourth — Authorizing the creation, extension, or impairing of 
liens. 

Twenty-fifth — Chartering or licensing ferries, bridges, or roads. 

Twenty-sixth — Remitting fines, penalties, or forfeitures. 



THE CONSTITUTION OF CALIFORNIA 715 



Twenty- seventh — Providing for the management of common schools. 

Twenty-eighth — Creating offices, or prescribing the powers and duties 
of officers in counties, cities, cities and counties, township, election, or 
school districts. 

Twenty-ninth — Affecting the fees or salary of any officer. 

Thirtieth — Changing the law of descent or succession. 

Thirty-first — Authorizing the adoption or legitimation of children. 

Thirty-second — For limitation of civil or criminal actions. 

Thirty-third — In all other cases where a general law can he made 
applicable. 

Sec. 26. The Legislature shall have no power to authorize lotteries 
or gift enterprises for any purpose, and shall pass laws to prohibit the 
sale in this State of lottery or gift enterprise tickets, or tickets in any 
scheme in the nature of a lottery. The Legislature shall pass laws to 
regulate or prohibit the buying and selling of the shares of the capital 
stock of corporations in any stock board, stock exchange, or stock market 
under the control of any association. All contracts for the sale of 
shares of the capital stock of any corporation or association, on margin, 
or to be delivered at a future day, shall be void, and any money paid on 
such contracts may be recovered by the party paying it by suit in any 
Court of competent jurisdiction. 

Sec. 35. Any person who seeks to influence the vote of a member 
of the Legislature by bribery, promise of reward, intimidation, or any 
other dishonest means, shall be guilty of lobbying, which is hereby de- 
clared a felony ; and it shall be the duty of the Legislature to provide, 
by law, for the punishment of this crime. Any member of the Legis- 
lature, who shall be influenced in his vote or action upon any matter 
pending before the Legislature by any reward, or promise of future 
reward, shall be deemed guilty of a felony, and upon conviction thereof, 
in addition to such punishment as may be provided by law, shall be 
disfranchised and for ever disqualified from holding any office of public 
trust. Any person may be compelled to testify in any lawful investiga- 
tion or judicial proceeding against any person who may be charged with 
having committed the offence of bribery or corrupt solicitation, or with 
having been influenced in his vote or action, as a member of the Legis- 
lature, by reward, or promise of future reward, and shall not be per- 
mitted to withhold his testimony upon the ground that it may criminate 
himself, or subject him to public infamy ; but such testimony shall not 
afterwards be used against him in any judicial proceeding, except for 
perjury in giving such testimony. 

ARTICLE XII 

CORPORATIONS 

Section 1. Corporations may be formed under general laws, but shall 
not be created by special Act. All laws now in force in this State con- 
cerning corporations, and all laws that may be hereafter passed pursuant 
to this section, may be altered from time to time or repealed. 



716 APPENDIX 

Sec. 2. Dues from corporations shall be secured by such individual 
liability of the corporators and other means as may be prescribed by law. 

Sec 3. Each stockholder of a corporation, or joint-stock association, 
shall be individually and personally liable for such proportion of all its 
debts and liabilities contracted or incurred, during the time he was a stock- 
holder, as the amount of stock or shares owned by him bears to the whole 
of the subscribed capital stock or shares of the corporation or association. 
The directors or trustees of corporations and joint-stock associations shall 
be jointly and severally liable to the creditors and stockholders for all 
moneys embezzled or misappropriated by the officers of such corporation 
or joint-stock association, during the term of such director or trustee. 

Sec. 4. The term corporations, as used in this article, shall be construed 
to include all associations and joint-stock companies having any of the 
powers or privileges of corporations not possessed by individuals or part- 
nerships, and all corporations shall have the right to sue and shall be sub- 
ject to be sued, in all Courts, in like cases as natural persons. 

Sec 5. The Legislature shall have no power to pass any Act grant- 
ing any charter for banking purposes, but corporations or associations 
may be formed for such purposes under general laws. No corporation, 
association, or individual shall issue or put into circulation, as money, 
anything but the lawful money of the United States. 

Sec 6. All existing charters, grants, franchises, special or exclusive 
privileges, under which an actual and bona fide organization shall not have 
taken place, and business been commenced in good faith, at the time of 
the adoption of this Constitution, shall thereafter have no validity. 

Sec 7. The Legislature shall not extend any franchise or charter, nor 
remit the forfeiture of any franchise or charter, of any corporation now 
existing, or which shall hereafter exist under the laws of this State. 

Sec 8. The exercise of the right of eminent domain shall never be so 
abridged or construed as to prevent the Legislature from taking the prop- 
erty and franchises of incorporated companies and subjecting them to 
public use the same as the property of individuals, and the exercise of the 
police power of the State shall never be so abridged or construed as to 
permit corporations to conduct their business in such manner as to infringe 
the rights of individuals or the general well-being of the State. 

Sec 9. No corporation shall engage in any business other than that 
expressly authorized in its charter, or the law under which it may have 
been or may hereafter be organized ; nor shall it hold for a longer period 
than five years any real estate except such as may be necessary for carry- 
ing on its business. 

Sec 10. The Legislature shall not pass any laws permitting the leas- 
ing or alienation of any franchise, so as to relieve the franchise or prop- 
erty held thereunder from the liabilities of the lessor or grantor, lessee or 
grantee, contracted or incurred in the operation, use, or enjoyment of 
such franchise, or any of its privileges. 

Sec 11. No corporation shall issue stock or bonds, except for money 
paid, labour done, or property actually received, and all fictitious increase 
of stock or indebtedness shall be void. The stock and bonded indebted- 



THE CONSTITUTION OF CALIFORNIA 717 



ness of corporations shall not be increased except in pursuance of general 
law, nor without the consent of the persons holding the larger amount in 
value of the stock, at a meeting called for that purpose, giving sixty days 
public notice, as may be provided by law. 

Sec. 12. In all elections for directors or managers of corporations every 
stockholder shall have the right to vote, in person or by proxy, the num- 
ber of shares of stock owned by him, for as many persons as there are 
directors or managers to be elected, or to cumulate said shares and give 
one candidate as many votes as the number of directors multiplied by the 
number of his shares of stock shall equal, or to distribute them, on the 
same principle, among as many candidates as he may think fit ; and such 
directors or managers shall not be elected in any other manner, except 
that members of co-operative societies formed for agricultural, mercantile, 
and manufacturing purposes may vote on all questions affecting such 
societies in manner prescribed by law. 

Sec. 13. The State shall not in any manner loan its credit, nor shall 
it subscribe to or be interested in the stock of any company, association, or 
corporation. 

Sec 14. Every corporation, other than religious, educational, or benev- 
olent, organized or doing business in this State, shall have and maintain an 
office or place in this State for the transaction of its business, where 
transfers of stock shall be made, and in which shall be kept for inspec- 
tion, by every person having an interest therein, and legislative commit- 
tees, books in which shall be recorded the amount of capital stock sub- 
scribed, and by whom ; the names of the owners of its stock, and the 
amounts owned by them respectively ; the amount of stock paid in, and by 
whom ; the transfers of stock ; the amount of its assets and liabilities, 
and the names and place of residence of its officers. 

Sec 15. No corporation organized outside the limits of this State shall 
be allowed to transact business within this State on more favourable con- 
ditions than are prescribed by law to similar corporations organized under 
the laws of this State. 

Sec 16. A corporation or association may be sued in the county where 
the contract is made or is to be performed, or where the obligation or 
liability arises, or the breach occurs ; or in the county where the principal 
place of business of such corporation is situated, subject to the power of 
the Court to change the place of trial as in other cases. 

Sec 17. All railroad, canal, and other transportation companies are 
declared to be common carriers, and subject to legislative control. Any 
association or corporation, organized for the purpose, under the laws of 
this State, shall have the right to connect at the State line with railroads 
of other States. Every railroad company shall have the right with its 
road to intersect, connect with, or cross any other railroad, and shall 
receive and transport each the other's passengers, tonnage, and cars, 
without delay or discrimination. 

Sec 18. No president, director, officer, agent, or employe of any rail- 
road or canal company shall be interested, directly or indirectly, in the 
furnishing of material or supplies to such company, nor in the business 



718 APPENDIX 



of transportation as a common carrier of freight or passengers over the 
works owed, leased, controlled, or worked by snch company, except such 
interest in the business of transportation as lawfully flows from the owner- 
ship of stock therein. 

Sec. 19. No railroad or other transportation company shall grant free 
passes, or passes or tickets at a discount, to any person holding any office 
of honour, trust, or profit in this State ; and the acceptance of any such 
pass or ticket by a member of the Legislature or any public officer, other 
than Railroad Commissioner, shall work a forfeiture of his office. 

Sec 20. No railroad company or other common carrier shall combine 
or make any contract with the owners of any vessel that leaves port or 
makes port in this State, or with any common carrier, by which combina- 
tion or contract the earnings of one doing the carrying are to be shared 
by the other not doing the carrying. And whenever a railroad corpora- 
tion shall, for the purpose of competing with any other common carrier, 
lower its rates for transportation of passengers or freight from one point 
to another, such reduced rates shall not be again raised or increased from 
such standard without the consent of the governmental authority in which 
shall be vested the power to regulate fares and freights. 

Sec 21. No discrimination in charges or facilities for transportation 
shall be made by any railroad or other transportation company between 
places or persons, or in the facilities for the transportation of the same 
classes of freight or passengers within this State, or coming from or going 
to any other State. Persons and property transported over any railroad, 
or by any other transportation company or individual, shall be delivered 
at any station, landing, or port, at charges not exceeding the charges for 
the transportation of persons and property of the same class, in the same 
direction, to any more distant station, port, or landing. Excursion and 
commutation tickets may be issued at special rates. 

Sec 22. The State will be divided into three districts as nearly equal 
in population as practicable, in each of which one Railroad Commissioner 
shall be elected by the qualified electors thereof at the regular gubernato- 
rial elections, whose salary shall be fixed by law, and whose term of office 
shall be four years, commencing on the first Monday after the first day 
of January next succeeding their election. Said Commissioners shall be 
qualified electors of this State and of the district from which they are 
elected, and shall not be interested in any railroad corporation, or other 
transportation company, as stockholder, creditor, agent, attorney, or 
employe ; and the act of a majority of said Commissioners shall be 
deemed the act of said Commission. Said Commissioners shall have the 
power, and it shall be their duty, to establish rates of charges for the 
transportation of passengers and freight by railroad or other transporta- 
tion companies, and publish the same from time to time, with such 
changes as they may make ; to examine the books, records, and papers 
of all railroad and other transportation companies, and for this purpose 
they shall have power to issue subpoenas and all other necessary process ; 
to hear and determine complaints against railroad and other transporta- 
tion companies, to send for persons and papers, to administer oaths, take 



THE CONSTITUTION OF CALIFOENIA 719 



testimony, and punish for contempt of their orders and processes, in the 
same manner and to the same extent as Courts of record, and enforce 
their decisions and correct abuses through the medium of the Courts. 
Said Commissioners shall prescribe a uniform system of accounts to be 
kept by all such corporations and companies. Any railroad corporation 
or transportation company which shall fail or refuse to conform to such 
rates as shall be established by such Commissioners, or shall charge rates 
in excess thereof, or shall fail to keep their accounts in accordance with 
the system prescribed by the Commission, shall be fined not exceeding 
twenty thousand dollars for each offence ; and every officer, agent, or 
employe of any such corporation or company, who shall demand or 
receive rates in excess thereof, or who shall in any manner violate the 
provisions of this section, shall be fined not exceeding five thousand 
dollars, or be imprisoned in the county jail not exceeding one year. In 
all controversies, civil or criminal, the rates of fares and freights estab- 
lished by said Commission shall be deemed conclusively just and reason- 
able, and in any action against such corporation or company for damages 
sustained by charging excessive rates, the plaintiff, in addition to the 
actual damage, may, in the discretion of the Judge or jury, recover 
exemplary damages. Said Commission shall report to the Governor, 
annually, their proceedings, and such other facts as may be deemed 
important. Nothing in this section shall prevent individuals from main- 
taining actions against any of such companies. The Legislature may, in 
addition to any penalties herein prescribed, enforce this article by forfeit- 
ure of charter or otherwise, and may confer such further powers on the 
Commissioners as shall be necessary to enable them to perform the duties 
enjoined on them in this and the foregoing section. The Legislature 
shall have power, by a two-thirds vote of all the members elected to each 
house, to remove any one or more of said Commissioners from office, for 
dereliction of duty, or corruption, or incompetency ; and whenever, from 
any cause, a vacancy in office shall occur in said Commission, the Gov- 
ernor shall fill the same by the appointment of a qualified person thereto, 
who shall hold office for the residue of the unexpired term, and until his 
successor shall have been elected and qualified. 

Sec. 24. The Legislature shall pass all laws necessary for the enforce- 
ment of the provisions of this article. 



AETICLE XIII 

REVENUE AND TAXATION 

Section 1. All property in the State, not exempt under the laws of 
the United States, shall be taxed in proportion to its value, to be 
ascertained as provided by law. The word " property," as used in this 
article and section, is hereby declared to include moneys, credits, bonds, 
stocks, dues, franchises, and all other matters and things, real, personal, 
and mixed, capable of private ownership ; provided, that growing crops, 
property used exclusively for public schools, and such as may belong to 



720 APPENDIX 



the United States, this State, or to any county or municipal corporation 
within this State, shall be exempt from taxation. The Legislature may 
provide, except in case of credits secured by mortgage or trust deed, for 
a reduction from credits of debts due bona fide residents of this State. 

Sec. 2. Land, and the improvements thereon, shall be separately 
assessed. Cultivated and uncultivated land, of the same quality, and 
similarly situated, shall be assessed at the same value. 

Sec 3. Every tract of land containing more than six hundred and 
forty acres, and which has been sectionized by the United States Govern- 
ment, shall be assessed, for the purposes of taxation, by sections or 
fractions of sections. The Legislature shall provide by law for the 
assessment, in small tracts, of all lands not sectionized by the United 
States Government. 

Sec. 4. A mortgage, deed of trust, contract, or other obligation by 
which a debt is secured, shall, for the purpose of assessment and taxa- 
tion, be deemed and treated as an interest in the property affected 
thereby. Except as to railroad and other quasi-public corporations, in 
case of debt so secured, the value of the property affected by such 
mortgage, deed of trust, contract, or obligation, less the value of such 
security, shall be assessed and taxed to the owner of the property, and 
the value of such security shall be assessed and taxed to the owner 
thereof, in the county, city, or district in which the property affected 
thereby is situate. The taxes so levied shall be a lien upon the property 
and security, and may be paid by either party to such security ; if 
paid by the owner of the security, the tax so levied upon the property 
affected thereby shall become a part of the debt so secured; if the 
owner of the property shall pay the tax so levied on such security, it 
shall constitute a payment thereon, and to the extent of such payment, 
a full discharge thereof ; provided, that if any such security or indebted- 
ness shall be paid by such debtor or debtors, after assessment and before 
the tax levy, the amount of such levy may likewise be retained by such 
debtor or debtors, and shall be computed according to the tax levy of 
the preceding year. 

Sec 5. Every contract hereafter made, by which a debtor is obligated 
to pay any tax or assessment on money loaned, or on any mortgage, deed 
of trust, or other lien, shall, as to any interest specified therein, and as to 
such tax or assessment, be null and void. 

Sec 6. The power of taxation shall never be surrendered or sus- 
pended by any grant or contract to which the State shall be a party. 

Sec 7. The Legislature shall have the power to provide by law for the 
payment of all taxes on real property by instalments. 

Sec 8. The Legislature shall by law require each taxpayer in this 
State to make and deliver to the County Assessor, annually, a statement, 
under oath, setting forth specifically all the real and personal property 
owned by such taxpayer, or in his possession, or under his control, at 
twelve o'clock meridian on the first Monday of March. 

Sec 9. A State Board of Equalization, consisting of one member 
from each Congressional District in this State, as the same existed in 



THE CONSTITUTION OF CALIFORNIA 721 

eighteen hundred and seventy-nine, shall be elected by the qualified 
electors of their respective districts, at the general election to be held 
in the year one thousand eight hundred and eighty-six, and at each 
gubernatorial election thereafter, whose term of office shall be for four 
years ; whose duty it shall be to equalize the valuation of the taxable 
property in the several counties of the State for the purposes of taxation. 
The Controller of State shall be ex officio a member of the Board. The 
Boards of Supervisors of the several counties of the State shall constitute 
Boards of Equalization for their respective counties, whose duty it shall 
be to equalize the valuation of the taxable property in the county for the 
purpose of taxation ; provided, such State and County Boards of Equal- 
ization are hereby authorized and empowered, under such rules of notice 
as the County Boards may prescribe as to the action of the State Board, 
to increase or lower the entire assessment roll, or any assessment con- 
tained therein, so as to equalize the assessment of the property contained 
in said assessment roll, and make the assessment conform to the true 
value in money of the property contained in said roll ; provided, that no 
Board of Equalization shall raise any mortgage, deed of trust, contract, 
or other obligation by which a debt is secured, money, or solvent credits, 
above its face value. The present State Board of Equalization shall 
continue in office until their successors, as herein provided for, shall be 
elected and shall qualify. The Legislature shall have power to redistrict 
the State into four districts, as nearly equal in population as practical, 
and to provide for the election of members of said Board of Equaliza- 
tion. [Amendment, adopted November 4, 1884.] 

Sec. 10. All property, except as hereinafter in this section provided, 
shall be assessed in the county, city, city and county, town, township, or 
district in which it is situated, in the manner prescribed by law. The 
franchise, roadway, roadbed, rails, and rolling stock of all railroads oper- 
ated in more than one county in this State shall be assessed by the State 
Board of Equalization at their actual value, and the same shall be appor- 
tioned to the counties, cities and counties, cities, towns, townships, and 
districts in which such railroads are located, in proportion to the number 
of miles of railway laid in such counties, cities and counties, cities, 
towns, townships, and districts. 

Sec. 11. Income taxes may be assessed to and collected from persons, 
corporations, joint-stock associations, or companies resident or doing 
business in this State, or any one or more of them, in such cases and 
amounts and in such manner, as shall be prescribed by law. 

Sec 12. The Legislature shall provide for the levy and collection of an 
annual poll tax of not less than two dollars, on every male inhabitant of 
this State over twenty-one and under sixty years of age, except paupers, 
idiots, insane persons, and Indians not taxed. Said tax shall be paid 
into the State School Fund. 

Sec. 13. The Legislature shall pass all laws necessary to carry out 
the provisions of this article. 

VOL. I 3 A 



722 APPENDIX 



ARTICLE XIV 

WATER AND WATER RIGHTS 

Section 1. The use of all water now appropriated, or that may here- 
after be appropriated, for sale, rental, or distribution, is hereby declared 
to be a public use, and subject to the regulation and control of the State, 
in the manner to be prescribed by law ; provided, that the rates or com- 
pensation to be collected by any person, company, or corporation in this 
State, for the use of water supplied to any city and county, or city, or 
town, or the inhabitants thereof, shall be fixed, annually, by the Board 
of Supervisors, or City and County, or City or Town Council, or other 
governing body of such city and county, or city or town, by ordinance or 
otherwise, in the manner that other ordinances or legislative acts or reso- 
lutions are passed by such body, and shall continue in force for one year 
and no longer. Such ordinances or resolutions shall be passed in the 
month of February of each year, and take effect on the first day of July 
thereafter. Any Board or body failing to pass the necessary ordinances 
or resolutions fixing water rates, where necessary, within such time, shall 
be subject to peremptory process to compel action at the suit of any party 
interested, and shall be liable to such further processes and penalties as 
the Legislature may prescribe. Any person, company, or corporation 
collecting water rates in any city and county, or city or town in this 
State, otherwise than as so established, shall forfeit the franchises and 
waterworks of such person, company, or corporation to the city and 
county, or city or town, where the same are collected, for the public 
use. 

Sec. 2. The right to collect rates or compensate for the use of water 
supplied to any county, city and county, or town, or the inhabitants 
thereof, is a franchise, and cannot be exercised except by authority of 
and in the manner prescribed by law. 



ARTICLE XV 

HARBOUR FRONTAGES, ETC 

Section 1. The right of eminent domain is hereby declared to exist in 
the State to all frontages on the navigable waters of this State. 

Sec 2. No individual, partnership, or corporation, claiming or possess- 
ing the frontage or tidal lands of a harbour, bay, inlet, estuary, or other 
navigable water in this State, shall be permitted to exclude the right of 
way to such water whenever it is required for any public purpose, nor to 
destroy or obstruct the free navigation of such water; and the Legis- 
lature shall enact such laws as will give the most liberal construction to 
this provision so that access to the navigable waters of this State shall be 
always attainable for the people thereof. 

Sec 3. All tide lands within two miles of any incorporated city or 



THE CONSTITUTION OF CALIFORNIA 723 

town of this State and fronting on the waters of any harbour, estuary, 
bay, or inlet, used for the purposes of navigation, shall be withheld from 
grant or sale to private persous, partnerships, or corporations. 

ARTICLE XVI 

STATE INDEBTEDNESS 

Section 1. The Legislature shall not, in any manner, create any debt 
or debts, liability or liabilities, which shall, singly or in the aggregate with 
any previous debts or liabilities, exceed the sum of three hundred thou- 
sand dollars, except in case of war to repel invasion or suppress insurrec- 
tion, unless the same shall be authorized by law for some single object or 
work to be distinctly specified therein, which law shall provide ways and 
means, exclusive of loans, for the payment of the interest of such debt or 
liability as it falls due, and also to pay and discharge the principal of such 
debt or liability within twenty years of the time of the contracting thereof, 
and shall be irrepealable until the principal and interest thereon shall be 
paid and discharged ; but no such law shall take effect until, at a general 
election, it shall have been submitted to the people and shall have re- 
ceived a majority of all the votes cast for and against it at such election ; 
and all moneys raised by authority of such law shall be applied only to 
the specific object therein stated, or to the payment of the debt thereby 
created, and such law shall be published in at least one newspaper in 
each county, or city and county, if one be published therein, throughout 
the State, for three months next preceding the election at which it is sub- 
mitted to the people. The Legislature may at any time after the ap- 
proval of such law by the people, if no debt shall have been contracted in 
pursuance thereof, repeal the same. 

ARTICLE XVII 

LAND AND HOMESTEAD EXEMPTION 

Section 1. The Legislature shall protect, by law, from forced sale, a 
certain portion of the homestead and other property of all heads of 
families. 

Sec. 2. The holding of large tracts of land, uncultivated and unim- 
proved, by individuals or corporations, is against the public interest, and 
should be discouraged by all means not inconsistent with the rights of 
private property. 

Sec 3. Lands belonging to this State, which are suitable for cultiva- 
tion, shall be granted only to actual settlers, and in quantities not exceed- 
ing three hundred and twenty acres to each settler, under such conditions 
as shall be prescribed by law. 



724 APPENDIX 



ARTICLE XIX 



Section 1. The Legislature shall prescribe all necessary regulations 
for the protection of the State, and the counties, cities, and towns thereof, 
from the burdens and evils arising from the presence of aliens who are or 
may become vagrants, paupers, mendicants, criminals, or invalids afflicted 
with contagious or infectious diseases, and from aliens otherwise danger- 
ous or detrimental to the well-being or peace of the State, and to impose 
conditions upon which such persons may reside in the State, and provide 
the means and mode of their removal from the State, upon failure and 
refusal to comply with such conditions ; provided, that nothing contained 
in this section shall be construed to impair or limit the power of the Leg- 
islature to pass such police laws or other regulations as it may deem 
necessary. 

Sec 2. No corporation now existing or hereafter formed under the 
laws of this State, shall, after the adoption of this Constitution, employ, 
directly or indirectly, in any capacity, any Chinese or Mongolian. The 
Legislature shall pass such laws as may be necessary to enforce this 
provision. 

Sec 3. No Chinese shall be employed on any State, county, municipal, 
or other public work, except in punishment for crime. 

Sec 4. The presence of foreigners ineligible to become citizens of the 
United States is declared to be dangerous to the well-being of the State, 
and the Legislature shall discourage their immigration by all the means 
within its power. Asiatic coolieism is a form of human slavery, and is 
for ever prohibited in this State, and all contracts for coolie labour shall 
be void. All companies or corporations, whether formed in this country 
or any foreign country, for the importation of such labour, shall be subject 
to such penalties as the Legislature may prescribe. The Legislature shall 
delegate all necessary power to the incorporated cities and towns of this 
State for the removal of Chinese without the limits of such cities and 
towns, or for their location within prescribed portions of those limits, and 
it shall also provide the necessary legislation to prohibit the introduction 
into this State of Chinese after the adoption of the Constitution. This 
section shall be enforced by appropriate legislation. 



END OF VOL. I 



WORKS BY THE SAME AUTHOR. 



Social Institutions of the United States. 

Reprinted from "The American Commonwealth." 
i2mo. Cloth. $1.00. 



The Holy Roman Empire. 

Eighth Edition, revised and enlarged. Crown 8vo. $1.00. 

Library Edition. 8vo. $3.50. 

The Saturday Review says : " It exactly supplies a want. . . . We know of 
no writer who has so thoroughly grasped the real nature of the mediaeval empire, 
and its relations alike to earlier and later times." 



Transcaucasia and Ararat. 

Being Notes of a Vacation Tour in the Autumn of 1876. 

With Map and View of Mount Ararat. 

Third Edition. Crown 8vo. $2.50. 

The Times says : " He has produced a very interesting volume, full of informa- 
tion. ... In Professor Bryce's bold ascent of Ararat alone, when Kurds and 
Cossacks alike deserted him, we have a feat of mountain climbing which in itself 
proves him to be no unworthy member of the Alpine Club. This alone would 
render the book well worth reading, quite apart from the store of information con- 
tained in it." 

The Athen&um says : " Mr. Bryce has written a lively and at the same time 
instructive description of the tour he made in and about the Caucasus. When so 
well informed a jurist travels into regions seldom visited, and even walks up a 
mountain so rarely scaled as Ararat, he is justified in thinking that the impressions 
he brings home are worthy of being communicated to the world at large." 



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HISTORY OF THE NEW WORLD CALLED 

AMERICA. 

By EDWARD JOHN PAYNE, 

Fellow of University College, Oxford. 

Vol. I. i2mo. $3.00. 

" Leads the student in a novel direction. . . . The elucidation of the subject 
surpasses in thoroughness and clearness anything of the kind we have ever read 
before." — N. Y. Times. 

" He has produced a volume of extraordinary interest, not more remarkable for 
its learning and force than for the extreme freshness of the point of view." — N. Y. 
Times (second notice) . 

"... A work that promises to be of very unusual interest and value. Mr. 
Payne has taken up his important theme in an original and suggestive manner ; 
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volumes of his narrative will undoubtedly be looked for with no little impatience." 
— Boston Beacon. 

"... The discussion of these ingenious theories does not fall within our 
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oughness of the author's researches." — Chicago Tribune. 

" We have before us the first instalment of the most comprehensive and, there- 
fore, the most ambitious History of America that has ever been projected. In a 
series of volumes which, if we may judge from the limited space covered by the 
book now issued, will be a long one, the author, Mr. Edward John Payne, a Fellow 
of University College, Oxford, has undertaken to present a well-ordered and artistic 
digest of the results of a scientific study of the annals of the New World from its 
discovery to the present day." — New York Sun (first notice). 

" We have here the first volume of a history of this continent which promises to 
cover a broad field, and to be more unique and interesting than any previous 
American history. It is refreshing to find, amid the deluge of ' Columbus ' litera- 
ture and histories which the approaching celebration is producing, such a learned, 
dispassionate, far-sighted opening volume of a history that bids fair to set all others 
in the background." — St. Louis Republican. 

" To the exhaustive scientific and ethnical detail displayed in this first volume 
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book is extraordinary. It enriches a theme still unworn, and makes the pursuit of 
it a pleasure higher than a pastime." — St. Paul Pioneer Press. 



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Macmillan & CO.'S 

LIST OF BOOKS 

ON 

HISTORY &> POLITICAL ECONOMY 



ABDY (Judge). — Feudalism : a Series of Lectures delivered at Gresham College. 
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ADAMS and CUNNINGHAM.— The Swiss Confederation. With Map. 8vo. #4.00. 

ANSON. — Works by Sir William R. Anson, D.C.L. 
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Part I. Parliament. 8vo. $2.75. 
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Principles of English Law of Contract, and of Agency in its Relation to 
Contract. Fifth Edition, revised. Clarendon Press Series. 8vo. $2.60. 

ARISTOTLE. On the Athenian Constitution. Translated, with Introduction 
and Notes, by F. G. Ken YON, M.A., Fellow of Magdalen College, Oxford. 
On handmade paper, bound in buckram. Post 8vo. $1.10. 
Large-paper Edition. Large i2mo. $3.25. 

BASTABLE. — Public Finance. By C. F. Bastable, Professor of Political Econ- 
omy at Trinity College, Dublin. 8vo. $4.00. 

" His treatise on Finance is exhaustive and far-reaching. ... As a thorough statement 
of the theories of the English school of finance, there has been no manual recently published 
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mercial Bulletin. 

BEDE'S (Venerable) Ecclesiastical History of England. Together with the 
Anglo-Saxon Chronicle. With Illustrative Notes, a Short Life of Bede, 
Analysis of the History, and an Index and a Map of Anglo-Saxon England. 
Edited by J. A. Giles, D.C.L. $1.50. 

BENTHAM. — An Introduction to the Principles of Morals and Legislation. 

Clarendon Press Series. $1.75. 
A Fragment on Government. By Jeremy Bentham. Edited, with an Intro- 
duction, by F. C. Montague, M.A., Late Fellow of Oriel College. 8vo. $2.00. 

BERNARD (M.). — Four Lectures on Subjects Connected with Diplomacy. 

8vo. $2.50. 

BIRKBECK (W. L.) . — Historical Sketch of the Distribution of Land in Eng- 
land. $1.50. 

3 



BLAIR'S Chronological Tables, Revised and Enlarged. Comprehending the 
Chronology and History of the World, from the Earliest Times to the Russian 
Treaty of Peace, April, 1856. By J. WlLLOUGHBY Ross. £3.50. 
Index of Dates. Comprehending the Principal Facts in the Chronology and 
History of the World, from the Earliest to the Present Time, alphabetically 
arranged ; being a complete Index to Bohn's enlarged Edition of Blair's 
Chronological Tables. By J. W. ROSSE. 2 vols. Each $1.50. 

BLUNTSCHLI (B. H.). — The Theory of the State. English Translation by 
R. LODGE, M.A. New Edition. $3.00. 

BOHM-BAWERK. — Capital and Interest. A Critical History of Economical 
Theory. By EUGEN V. BoHM-BAWERK, Professor of Political Economy in 
the University of Innsbruck. Translated, with a Preface and Analysis, by 
WILLIAM Smart, Lecturer on Political Economy in Queen Margaret College, 
Glasgow. 8vo. $4.00. 

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The Positive Theory of Capital. By Eugen V. Bohm-Bawerk, author of 
" Capital and Interest," etc. Translated by WILLIAM SMART, Lecturer on 
Political Economy in Queen Margaret College, Glasgow. 8vo. $4.00. 

BONAR (J.). — Malthus and his Work. 8vo. $4.00. 

BOND (J. J.). — A Handy Book of Rules and Tables for verifying Dates with 
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BOOTH. — Life and Labour of the People in London. Edited by Charles 

Booth. i2mo. 4 vols. Each $1.50. 

Vol. I. East Central and South London. 

Vol. II. Streets and Population classified. 

Vol. III. Blocks of Buildings, Schools, and Immigration. 

Vol. IV. East London Industries. 

" A really interesting as well as a very valuable work, and it is issued at a wonderfully 
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A Picture of Pauperism, A Picture; and The Endowment of Old Age, An 
Argument. By CHARLES BOOTH. i2mo. $r.25. 

BOUTMY. — The English Constitution. By E. Boutmy, author of " Studies in 

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